Florida Senate - 2016 SB 1532
By Senator Soto
14-01623-16 20161532__
1 A bill to be entitled
2 An act relating to community associations; amending s.
3 20.165, F.S.; renaming the Division of Florida
4 Condominiums, Timeshares, and Mobile Homes as the
5 Division of Common Interest Communities; amending ss.
6 34.01, 73.073, 192.037, 193.023, 194.181, 201.02,
7 212.08, 213.053, 316.006, 316.2127, 326.002, 326.006,
8 336.125, 373.62, 380.0651, 418.22, 418.24, 455.116,
9 468.436, 475.455, 509.013, 509.241, 509.512, 553.835,
10 558.002, 559.935, 617.01401, 617.0505, 617.0601,
11 617.0701, 617.0721, 617.0802, 617.0808, 617.0831,
12 617.1606, 617.1703, 624.462, 626.854, 689.28, 702.09,
13 712.01, and 712.11, F.S.; conforming provisions to
14 changes made by the act; amending s. 718.101, F.S.;
15 revising a short title; amending s. 718.102, F.S.;
16 revising and providing purposes of ch. 718, F.S.;
17 amending s. 718.103, F.S.; revising and providing
18 definitions; amending s. 718.1035, F.S.; providing
19 that use of a power of attorney does not create
20 eligibility to serve on the board of directors;
21 amending s. 718.104, F.S.; revising and providing
22 provisions relating to the creation of common interest
23 communities and the contents of declaration; amending
24 s. 718.1045, F.S.; conforming provisions to changes
25 made by the act; amending s. 718.105, F.S.; revising
26 and providing provisions relating to recording of
27 documents; amending s. 718.106, F.S.; revising and
28 providing provisions relating to common interest
29 community parcels and appurtenances; amending s.
30 718.107, F.S.; making a technical change; amending ss.
31 718.108 and 718.1085, F.S.; conforming provisions to
32 changes made by the act; amending s. 718.109, F.S.;
33 revising and providing provisions relating to legal
34 description of common interest community parcels;
35 amending s. 718.110, F.S.; revising and providing
36 provisions relating to amendment of documents;
37 amending s. 718.111, F.S.; revising and providing
38 provisions relating to the common interest community
39 association; amending s. 718.112, F.S.; revising and
40 providing provisions relating to bylaws; amending s.
41 718.1124, F.S.; conforming provisions to changes made
42 by the act; amending s. 718.113, F.S.; revising and
43 providing provisions relating to maintenance,
44 limitation upon improvement, display of flag,
45 hurricane protection, display of spiritual
46 decorations, access ramps, window decals, xeriscape,
47 and mold and mildew; amending s. 718.114, F.S.;
48 revising and providing provisions relating to
49 association powers; amending s. 718.115, F.S.;
50 revising and providing provisions relating to common
51 expenses and common surplus; amending s. 718.116,
52 F.S.; revising and providing provisions relating to
53 assessments, liability, lien and priority, interest,
54 and collection; amending s. 718.117, F.S.; deleting
55 provisions authorizing the optional termination of a
56 condominium under certain circumstances; conforming
57 provisions to changes made by the act; amending s.
58 718.118, F.S.; conforming provisions to changes made
59 by the act; amending s. 718.119, F.S.; making an
60 editorial change; amending s. 718.120, F.S.; revising
61 and providing provisions relating to separate taxation
62 of parcels and survival of declaration after tax sale;
63 amending s. 718.121, F.S.; revising and providing
64 provisions relating to liens; amending ss. 718.122,
65 718.1224, 718.123, 718.1232, 718.124, and 718.125,
66 F.S.; conforming provisions to changes made by the
67 act; amending s. 718.1255, F.S.; revising provisions
68 relating to disputes involving election
69 irregularities; amending ss. 718.1256, 718.1265, and
70 718.127, F.S.; conforming provisions to changes made
71 by the act; transferring and renumbering s. 719.114,
72 F.S.; amending ss. 718.202 and 718.203, F.S.;
73 conforming provisions to changes made by the act;
74 amending s. 718.301, F.S.; revising and providing
75 provisions relating to transfer of association control
76 and claims of defect by association; amending ss.
77 718.302, 718.3025, and 718.3026, F.S.; conforming
78 provisions to changes made by the act; amending s.
79 718.303, F.S.; revising and providing provisions
80 relating to obligations of owners and occupants and
81 remedies; amending s. 718.401, F.S.; revising and
82 providing provisions relating to leaseholds; amending
83 ss. 718.4015, 718.402, 718.403, 718.404, 718.405,
84 718.406, 718.501, 718.5011, and 718.5012, F.S.;
85 conforming provisions to changes made by the act;
86 creating s. 718.50156, F.S.; creating the Community
87 Association Living Study Council; providing for
88 membership, duties, and meetings of the council;
89 amending s. 718.502, F.S.; conforming provisions to
90 changes made by the act; amending s. 718.503, F.S.;
91 revising and providing provisions relating to
92 developer disclosure prior to sale; amending s.
93 718.504, F.S.; revising and providing provisions
94 relating to prospectus and offering circulars;
95 amending ss. 718.506, 718.507, 718.508, 718.509,
96 718.604, and 718.606, F.S.; conforming provisions to
97 changes made by the act; amending s. 718.608, F.S.;
98 revising and providing provisions relating to notice
99 of intended conversion; amending s. 718.616, F.S.;
100 conforming provisions to changes made by the act;
101 amending s. 718.618, F.S.; revising and providing
102 provisions relating to converter reserve accounts and
103 warranties; amending ss. 718.62 and 718.621, F.S.;
104 conforming provisions to changes made by the act;
105 repealing part VII of ch. 718, F.S., relating to the
106 Distressed Condominium Relief Act; repealing ss.
107 719.101, 719.102, 719.103, 719.1035, 719.104, 719.105,
108 719.1055, 719.106, 719.1064, 719.1065, 719.107,
109 719.108, 719.109, 719.110, 719.111, 719.112, 719.1124,
110 719.115, 719.1255, 719.127, 719.128, 719.129, 719.202,
111 719.203, 719.301, 719.302, 719.3026, 719.303, 719.304,
112 719.401, 719.4015, 719.402, 719.403, 719.501, 719.502,
113 719.503, 719.504, 719.505, 719.506, 719.507, 719.508,
114 719.604, 719.606, 719.608, 719.61, 719.612, 719.614,
115 719.616, 719.618, 719.62, 719.621, and 719.622, F.S.,
116 relating to cooperatives; repealing ch. 720, F.S.,
117 relating to homeowners’ associations; amending ss.
118 721.03, 721.05, 721.07, 721.08, 721.13, 721.14,
119 721.15, 721.16, 721.165, 721.17, 721.20, 721.24,
120 721.26, 721.28, 721.301, 721.82, 721.855, 721.86,
121 723.003, 723.006, 723.009, 723.0611, 723.073,
122 723.0751, 723.078, 723.079, 723.0791, 723.1255,
123 768.1325, 849.085, and 849.0931, F.S.; conforming
124 provisions to changes made by the act; conforming
125 cross-references; making technical changes; providing
126 an effective date.
127
128 Be It Enacted by the Legislature of the State of Florida:
129
130 Section 1. Paragraph (e) of subsection (2) of section
131 20.165, Florida Statutes, is amended to read:
132 20.165 Department of Business and Professional Regulation.
133 There is created a Department of Business and Professional
134 Regulation.
135 (2) The following divisions of the Department of Business
136 and Professional Regulation are established:
137 (e) Division of Common Interest Communities Florida
138 Condominiums, Timeshares, and Mobile Homes.
139 Section 2. Subsection (1) of section 34.01, Florida
140 Statutes, is amended to read:
141 34.01 Jurisdiction of county court.—
142 (1) County courts shall have original jurisdiction:
143 (a) In all misdemeanor cases not cognizable by the circuit
144 courts;
145 (b) Of all violations of municipal and county ordinances;
146 (c) Of all actions at law in which the matter in
147 controversy does not exceed the sum of $15,000, exclusive of
148 interest, costs, and attorney’s fees, except those within the
149 exclusive jurisdiction of the circuit courts; and
150 (d) Of disputes occurring in the homeowners’ associations
151 as described in chapter 718 s. 720.311(2)(a), which shall be
152 concurrent with jurisdiction of the circuit courts.
153 Section 3. Subsection (2) of section 73.073, Florida
154 Statutes, is amended to read:
155 73.073 Eminent domain procedure with respect to condominium
156 common elements.—
157 (2) With respect to the exercise of eminent domain or a
158 negotiated sale for the purchase or taking of a portion of the
159 common elements of a condominium, the condemning authority shall
160 have the responsibility of contacting the condominium
161 association and acquiring the most recent rolls indicating the
162 names of the unit owners or contacting the appropriate taxing
163 authority to obtain the names of the owners of record on the tax
164 rolls. Notification shall be sent by certified mail, return
165 receipt requested, to the unit owners of record of the
166 condominium units by the condemning authority indicating the
167 intent to purchase or take the required property and requesting
168 a response from the unit owner. The condemning authority shall
169 be responsible for the expense of sending notification pursuant
170 to this section. Such notice shall, at a minimum, include:
171 (a) The name and address of the condemning authority.
172 (b) A written or visual description of the property.
173 (c) The public purpose for which the property is needed.
174 (d) The appraisal value of the property.
175 (e) A clear, concise statement relating to the unit owner’s
176 right to object to the taking or appraisal value and the
177 procedures and effects of exercising that right.
178 (f) A clear, concise statement relating to the power of the
179 association to convey the property on behalf of the unit owners
180 if no objection to the taking or appraisal value is raised, and
181 the effects of this alternative on the unit owner.
182
183 The Division of Common Interest Communities Florida
184 Condominiums, Timeshares, and Mobile Homes of the Department of
185 Business and Professional Regulation may adopt, by rule, a
186 standard form for such notice and may require the notice to
187 include any additional relevant information.
188 Section 4. Paragraphs (b) and (e) of subsection (6) of
189 section 192.037, Florida Statutes, are amended to read:
190 192.037 Fee timeshare real property; taxes and assessments;
191 escrow.—
192 (6)
193 (b) If the managing entity is a common interest community
194 condominium association subject to the provisions of chapter 718
195 or a cooperative association subject to the provisions of
196 chapter 719, the control of which has been turned over to owners
197 other than the developer, the escrow account must be maintained
198 by the association; otherwise, the escrow account must be placed
199 with an independent escrow agent, who shall comply with the
200 provisions of chapter 721 relating to escrow agents.
201 (e) On or before May 1 of each year, a statement of
202 receipts and disbursements of the escrow account must be filed
203 with the Division of Common Interest Communities Florida
204 Condominiums, Timeshares, and Mobile Homes of the Department of
205 Business and Professional Regulation, which may enforce this
206 paragraph pursuant to s. 721.26. This statement must
207 appropriately show the amount of principal and interest in such
208 account.
209 Section 5. Subsection (6) of section 193.023, Florida
210 Statutes, is amended to read:
211 193.023 Duties of the property appraiser in making
212 assessments.—
213 (6) In making assessments of cooperative parcels, the
214 property appraiser shall use the method required by s. 718.129
215 719.114.
216 Section 6. Subsection (1) of section 194.181, Florida
217 Statutes, is amended to read:
218 194.181 Parties to a tax suit.—
219 (1) The plaintiff in any tax suit shall be:
220 (a) The taxpayer or other person contesting the assessment
221 of any tax, the payment of which he or she is responsible for
222 under a statute or a person who is responsible for the entire
223 tax payment pursuant to a contract and has the written consent
224 of the property owner, or the common interest community
225 condominium association, cooperative association, or homeowners’
226 association as described defined in chapter 718 s. 723.075 which
227 operates the units subject to the assessment; or
228 (b) The property appraiser pursuant to s. 194.036.
229 Section 7. Subsection (2) of section 201.02, Florida
230 Statutes, is amended to read:
231 201.02 Tax on deeds and other instruments relating to real
232 property or interests in real property.—
233 (2) The tax imposed by subsection (1) shall also be payable
234 upon documents by which the right is granted to a tenant
235 stockholder to occupy an apartment in a building owned by a
236 cooperative apartment corporation or in a dwelling on real
237 property owned by any other form of cooperative association as
238 defined in s. 719.103.
239 Section 8. Paragraph (g) of subsection (5) of section
240 212.08, Florida Statutes, is amended to read:
241 212.08 Sales, rental, use, consumption, distribution, and
242 storage tax; specified exemptions.—The sale at retail, the
243 rental, the use, the consumption, the distribution, and the
244 storage to be used or consumed in this state of the following
245 are hereby specifically exempt from the tax imposed by this
246 chapter.
247 (5) EXEMPTIONS; ACCOUNT OF USE.—
248 (g) Building materials used in the rehabilitation of real
249 property located in an enterprise zone.—
250 1. Building materials used in the rehabilitation of real
251 property located in an enterprise zone are exempt from the tax
252 imposed by this chapter upon an affirmative showing to the
253 satisfaction of the department that the items have been used for
254 the rehabilitation of real property located in an enterprise
255 zone. Except as provided in subparagraph 2., this exemption
256 inures to the owner, lessee, or lessor at the time the real
257 property is rehabilitated, but only through a refund of
258 previously paid taxes. To receive a refund pursuant to this
259 paragraph, the owner, lessee, or lessor of the rehabilitated
260 real property must file an application under oath with the
261 governing body or enterprise zone development agency having
262 jurisdiction over the enterprise zone where the business is
263 located, as applicable. A single application for a refund may be
264 submitted for multiple, contiguous parcels that were part of a
265 single parcel that was divided as part of the rehabilitation of
266 the property. All other requirements of this paragraph apply to
267 each parcel on an individual basis. The application must
268 include:
269 a. The name and address of the person claiming the refund.
270 b. An address and assessment roll parcel number of the
271 rehabilitated real property for which a refund of previously
272 paid taxes is being sought.
273 c. A description of the improvements made to accomplish the
274 rehabilitation of the real property.
275 d. A copy of a valid building permit issued by the county
276 or municipal building department for the rehabilitation of the
277 real property.
278 e. A sworn statement, under penalty of perjury, from the
279 general contractor licensed in this state with whom the
280 applicant contracted to make the improvements necessary to
281 rehabilitate the real property, which lists the building
282 materials used to rehabilitate the real property, the actual
283 cost of the building materials, and the amount of sales tax paid
284 in this state on the building materials. If a general contractor
285 was not used, the applicant, not a general contractor, shall
286 make the sworn statement required by this sub-subparagraph.
287 Copies of the invoices that evidence the purchase of the
288 building materials used in the rehabilitation and the payment of
289 sales tax on the building materials must be attached to the
290 sworn statement provided by the general contractor or by the
291 applicant. Unless the actual cost of building materials used in
292 the rehabilitation of real property and the payment of sales
293 taxes is documented by a general contractor or by the applicant
294 in this manner, the cost of the building materials is deemed to
295 be an amount equal to 40 percent of the increase in assessed
296 value for ad valorem tax purposes.
297 f. The identifying number assigned pursuant to s. 290.0065
298 to the enterprise zone in which the rehabilitated real property
299 is located.
300 g. A certification by the local building code inspector
301 that the improvements necessary to rehabilitate the real
302 property are substantially completed.
303 h. A statement of whether the business is a small business
304 as defined by s. 288.703.
305 i. If applicable, the name and address of each permanent
306 employee of the business, including, for each employee who is a
307 resident of an enterprise zone, the identifying number assigned
308 pursuant to s. 290.0065 to the enterprise zone in which the
309 employee resides.
310 2. This exemption inures to a municipality, county, other
311 governmental unit or agency, or nonprofit community-based
312 organization through a refund of previously paid taxes if the
313 building materials used in the rehabilitation are paid for from
314 the funds of a community development block grant, State Housing
315 Initiatives Partnership Program, or similar grant or loan
316 program. To receive a refund, a municipality, county, other
317 governmental unit or agency, or nonprofit community-based
318 organization must file an application that includes the same
319 information required in subparagraph 1. In addition, the
320 application must include a sworn statement signed by the chief
321 executive officer of the municipality, county, other
322 governmental unit or agency, or nonprofit community-based
323 organization seeking a refund which states that the building
324 materials for which a refund is sought were funded by a
325 community development block grant, State Housing Initiatives
326 Partnership Program, or similar grant or loan program.
327 3. Within 10 working days after receipt of an application,
328 the governing body or enterprise zone development agency shall
329 review the application to determine if it contains all the
330 information required by subparagraph 1. or subparagraph 2. and
331 meets the criteria set out in this paragraph. The governing body
332 or agency shall certify all applications that contain the
333 required information and are eligible to receive a refund. If
334 applicable, the governing body or agency shall also certify if
335 20 percent of the employees of the business are residents of an
336 enterprise zone, excluding temporary and part-time employees.
337 The certification must be in writing, and a copy of the
338 certification shall be transmitted to the executive director of
339 the department. The applicant is responsible for forwarding a
340 certified application to the department within the time
341 specified in subparagraph 4.
342 4. An application for a refund must be submitted to the
343 department within 6 months after the rehabilitation of the
344 property is deemed to be substantially completed by the local
345 building code inspector or by November 1 after the rehabilitated
346 property is first subject to assessment.
347 5. Only one exemption through a refund of previously paid
348 taxes for the rehabilitation of real property is permitted for
349 any single parcel of property unless there is a change in
350 ownership, a new lessor, or a new lessee of the real property. A
351 refund may not be granted unless the amount to be refunded
352 exceeds $500. A refund may not exceed the lesser of 97 percent
353 of the Florida sales or use tax paid on the cost of the building
354 materials used in the rehabilitation of the real property as
355 determined pursuant to sub-subparagraph 1.e. or $5,000, or, if
356 at least 20 percent of the employees of the business are
357 residents of an enterprise zone, excluding temporary and part
358 time employees, the amount of refund may not exceed the lesser
359 of 97 percent of the sales tax paid on the cost of the building
360 materials or $10,000. A refund shall be made within 30 days
361 after formal approval by the department of the application for
362 the refund.
363 6. The department shall adopt rules governing the manner
364 and form of refund applications and may establish guidelines as
365 to the requisites for an affirmative showing of qualification
366 for exemption under this paragraph.
367 7. The department shall deduct an amount equal to 10
368 percent of each refund granted under this paragraph from the
369 amount transferred into the Local Government Half-cent Sales Tax
370 Clearing Trust Fund pursuant to s. 212.20 for the county area in
371 which the rehabilitated real property is located and shall
372 transfer that amount to the General Revenue Fund.
373 8. For the purposes of the exemption provided in this
374 paragraph, the term:
375 a. “Building materials” means tangible personal property
376 that becomes a component part of improvements to real property.
377 b. “Real property” has the same meaning as provided in s.
378 192.001(12), except that the term does not include a common
379 interest community condominium parcel or common interest
380 community condominium property as defined in s. 718.103.
381 c. “Rehabilitation of real property” means the
382 reconstruction, renovation, restoration, rehabilitation,
383 construction, or expansion of improvements to real property.
384 d. “Substantially completed” has the same meaning as
385 provided in s. 192.042(1).
386 9. This paragraph expires on the date specified in s.
387 290.016 for the expiration of the Florida Enterprise Zone Act.
388 Section 9. Paragraph (i) of subsection (8) of section
389 213.053, Florida Statutes, is amended to read:
390 213.053 Confidentiality and information sharing.—
391 (8) Notwithstanding any other provision of this section,
392 the department may provide:
393 (i) Information relative to chapters 212 and 326 to the
394 Division of Common Interest Communities Florida Condominiums,
395 Timeshares, and Mobile Homes of the Department of Business and
396 Professional Regulation in the conduct of its official duties.
397
398 Disclosure of information under this subsection shall be
399 pursuant to a written agreement between the executive director
400 and the agency. Such agencies, governmental or nongovernmental,
401 shall be bound by the same requirements of confidentiality as
402 the Department of Revenue. Breach of confidentiality is a
403 misdemeanor of the first degree, punishable as provided by s.
404 775.082 or s. 775.083.
405 Section 10. Paragraph (b) of subsection (2) and paragraph
406 (b) of subsection (3) of section 316.006, Florida Statutes, are
407 amended to read:
408 316.006 Jurisdiction.—Jurisdiction to control traffic is
409 vested as follows:
410 (2) MUNICIPALITIES.—
411 (b) A municipality may exercise jurisdiction over any
412 private road or roads, or over any limited access road or roads
413 owned or controlled by a special district, located within its
414 boundaries if the municipality and party or parties owning or
415 controlling such road or roads provide, by written agreement
416 approved by the governing body of the municipality, for
417 municipal traffic control jurisdiction over the road or roads
418 encompassed by such agreement. Pursuant thereto:
419 1. Provision for reimbursement for actual costs of traffic
420 control and enforcement and for liability insurance and
421 indemnification by the party or parties, and such other terms as
422 are mutually agreeable, may be included in such an agreement.
423 2. The exercise of jurisdiction provided for herein shall
424 be in addition to jurisdictional authority presently exercised
425 by municipalities under law, and nothing in this paragraph shall
426 be construed to limit or remove any such jurisdictional
427 authority. Such jurisdiction includes regulation of access to
428 such road or roads by security devices or personnel.
429 3. Any such agreement may provide for the installation of
430 multiparty stop signs by the parties controlling the roads
431 covered by the agreement if a determination is made by such
432 parties that the signage will enhance traffic safety. Multiparty
433 stop signs must conform to the manual and specifications of the
434 Department of Transportation; however, minimum traffic volumes
435 may not be required for the installation of such signage.
436 Enforcement for the signs shall be as provided in s. 316.123.
437 4. The board of directors of a common interest community
438 homeowners’ association as defined in chapter 720 may, by
439 majority vote, elect to have state traffic laws enforced by
440 local law enforcement agencies on private roads that are
441 controlled by the association.
442
443 This subsection shall not limit those counties which have the
444 charter powers to provide and regulate arterial, toll, and other
445 roads, bridges, tunnels, and related facilities from the proper
446 exercise of those powers by the placement and maintenance of
447 traffic control devices which conform to the manual and
448 specifications of the Department of Transportation on streets
449 and highways located within municipal boundaries.
450 (3) COUNTIES.—
451 (b) A county may exercise jurisdiction over any private
452 road or roads, or over any limited access road or roads owned or
453 controlled by a special district, located in the unincorporated
454 area within its boundaries if the county and party or parties
455 owning or controlling such road or roads provide, by written
456 agreement approved by the governing body of the county, for
457 county traffic control jurisdiction over the road or roads
458 encompassed by such agreement. Pursuant thereto:
459 1. Provision for reimbursement for actual costs of traffic
460 control and enforcement and for liability insurance and
461 indemnification by the party or parties, and such other terms as
462 are mutually agreeable, may be included in such an agreement.
463 2. Prior to entering into an agreement which provides for
464 enforcement of the traffic laws of the state over a private road
465 or roads, or over any limited access road or roads owned or
466 controlled by a special district, the governing body of the
467 county shall consult with the sheriff. No such agreement shall
468 take effect prior to October 1, the beginning of the county
469 fiscal year, unless this requirement is waived in writing by the
470 sheriff.
471 3. The exercise of jurisdiction provided for herein shall
472 be in addition to jurisdictional authority presently exercised
473 by counties under law, and nothing in this paragraph shall be
474 construed to limit or remove any such jurisdictional authority.
475 4. Any such agreement may provide for the installation of
476 multiparty stop signs by the parties controlling the roads
477 covered by the agreement if a determination is made by such
478 parties that the signage will enhance traffic safety. Multiparty
479 stop signs must conform to the manual and specifications of the
480 Department of Transportation; however, minimum traffic volumes
481 may not be required for the installation of such signage.
482 Enforcement for the signs shall be as provided in s. 316.123.
483 5. The board of directors of a common interest community
484 homeowners’ association as defined in chapter 720 may, by
485 majority vote, elect to have state traffic laws enforced by
486 local law enforcement agencies on private roads that are
487 controlled by the association.
488
489 Notwithstanding the provisions of subsection (2), each county
490 shall have original jurisdiction to regulate parking, by
491 resolution of the board of county commissioners and the erection
492 of signs conforming to the manual and specifications of the
493 Department of Transportation, in parking areas located on
494 property owned or leased by the county, whether or not such
495 areas are located within the boundaries of chartered
496 municipalities.
497 Section 11. Section 316.2127, Florida Statutes, is amended
498 to read:
499 316.2127 Operation of utility vehicles on certain roadways
500 by common interest community homeowners’ associations.—The
501 operation of a utility vehicle, as defined in s. 320.01, upon
502 the public roads or streets of this state by a common interest
503 community homeowners’ association, as defined in s. 720.301, or
504 its agents is prohibited except as provided herein:
505 (1) A utility vehicle may be operated by an a homeowners’
506 association or its agents only upon a county road that has been
507 designated by a county, or a city street that has been
508 designated by a city, for use by a utility vehicle for general
509 maintenance, security, and landscaping purposes. Prior to making
510 such a designation, the responsible local governmental entity
511 must first determine that utility vehicles may safely travel on
512 or cross the public road or street, considering factors
513 including the speed, volume, and character of motor vehicle
514 traffic on the road or street. Upon a determination that utility
515 vehicles may be safely operated on a designated road or street,
516 the responsible governmental entity shall post appropriate signs
517 to indicate that such operation is allowed.
518 (2) A utility vehicle may be operated by an a homeowners’
519 association or its agents on a portion of the State Highway
520 System only under the following conditions:
521 (a) To cross a portion of the State Highway System which
522 intersects a county road or a city street that has been
523 designated for use by utility vehicles if the Department of
524 Transportation has reviewed and approved the location and design
525 of the crossing and any traffic control devices needed for
526 safety purposes.
527 (b) To cross, at midblock, a portion of the State Highway
528 System where the highway bisects property controlled or
529 maintained by an a homeowners’ association if the Department of
530 Transportation has reviewed and approved the location and design
531 of the crossing and any traffic control devices needed for
532 safety purposes.
533 (c) To travel on a state road that has been designated for
534 transfer to a local government unit pursuant to s. 335.0415 if
535 the Department of Transportation determines that the operation
536 of a utility vehicle within the right-of-way of the road will
537 not impede the safe and efficient flow of motor vehicle traffic.
538 The department may authorize the operation of utility vehicles
539 on such a road if:
540 1. The road is the only available public road on which
541 utility vehicles may travel or cross or the road provides the
542 safest travel route among alternative routes available; and
543 2. The speed, volume, and character of motor vehicle
544 traffic on the road is considered in making such a
545 determination.
546
547 Upon its determination that utility vehicles may be operated on
548 a given road, the department shall post appropriate signs on the
549 road to indicate that such operation is allowed.
550 (3) A utility vehicle may be operated by a homeowners’
551 association or its agents only during the hours between sunrise
552 and sunset, unless the responsible governmental entity has
553 determined that a utility vehicle may be operated during the
554 hours between sunset and sunrise and the utility vehicle is
555 equipped with headlights, brake lights, turn signals, and a
556 windshield.
557 (4) A utility vehicle must be equipped with efficient
558 brakes, a reliable steering apparatus, safe tires, a rearview
559 mirror, and red reflectorized warning devices in both the front
560 and the rear.
561 (5) A utility vehicle may not be operated on public roads
562 or streets by any person under the age of 14.
563
564 A violation of this section is a noncriminal traffic infraction,
565 punishable pursuant to chapter 318 as either a moving violation
566 for infractions of subsection (1), subsection (2), subsection
567 (3), or subsection (4) or as a nonmoving violation for
568 infractions of subsection (5).
569 Section 12. Subsection (2) of section 326.002, Florida
570 Statutes, is amended to read:
571 326.002 Definitions.—As used in ss. 326.001-326.006, the
572 term:
573 (2) “Division” means the Division of Common Interest
574 Communities Florida Condominiums, Timeshares, and Mobile Homes
575 of the Department of Business and Professional Regulation.
576 Section 13. Paragraph (d) of subsection (2) and subsection
577 (3) of section 326.006, Florida Statutes, are amended to read:
578 326.006 Powers and duties of division.—
579 (2) The division has the power to enforce and ensure
580 compliance with the provisions of this chapter and rules adopted
581 under this chapter relating to the sale and ownership of yachts
582 and ships. In performing its duties, the division has the
583 following powers and duties:
584 (d) Notwithstanding any remedies available to a yacht or
585 ship purchaser, if the division has reasonable cause to believe
586 that a violation of any provision of this chapter or rule
587 adopted under this chapter has occurred, the division may
588 institute enforcement proceedings in its own name against any
589 broker or salesperson or any of his or her assignees or agents,
590 or against any unlicensed person or any of his or her assignees
591 or agents, as follows:
592 1. The division may permit a person whose conduct or
593 actions are under investigation to waive formal proceedings and
594 enter into a consent proceeding whereby orders, rules, or
595 letters of censure or warning, whether formal or informal, may
596 be entered against the person.
597 2. The division may issue an order requiring the broker or
598 salesperson or any of his or her assignees or agents, or
599 requiring any unlicensed person or any of his or her assignees
600 or agents, to cease and desist from the unlawful practice and
601 take such affirmative action as in the judgment of the division
602 will carry out the purposes of this chapter.
603 3. The division may bring an action in circuit court on
604 behalf of a class of yacht or ship purchasers for declaratory
605 relief, injunctive relief, or restitution.
606 4. The division may impose a civil penalty against a broker
607 or salesperson or any of his or her assignees or agents, or
608 against an unlicensed person or any of his or her assignees or
609 agents, for any violation of this chapter or a rule adopted
610 under this chapter. A penalty may be imposed for each day of
611 continuing violation, but in no event may the penalty for any
612 offense exceed $10,000. All amounts collected must be deposited
613 with the Chief Financial Officer to the credit of the Division
614 of Common Interest Communities Florida Condominiums, Timeshares,
615 and Mobile Homes Trust Fund. If a broker, salesperson, or
616 unlicensed person working for a broker, fails to pay the civil
617 penalty, the division shall issue an order suspending the
618 broker’s license until such time as the civil penalty is paid or
619 may pursue enforcement of the penalty in a court of competent
620 jurisdiction. The order imposing the civil penalty or the order
621 of suspension may not become effective until 20 days after the
622 date of such order. Any action commenced by the division must be
623 brought in the county in which the division has its executive
624 offices or in the county where the violation occurred.
625 (3) All fees must be deposited in the Division of Common
626 Interest Communities Florida Condominiums, Timeshares, and
627 Mobile Homes Trust Fund as provided by law.
628 Section 14. Paragraph (a) of subsection (1) of section
629 336.125, Florida Statutes, is amended to read:
630 336.125 Closing and abandonment of roads; optional
631 conveyance to homeowners’ association; traffic control
632 jurisdiction.—
633 (1)(a) In addition to the authority provided in s. 336.12,
634 the governing body of the county may abandon the roads and
635 rights-of-way dedicated in a recorded residential subdivision
636 plat and simultaneously convey the county’s interest in such
637 roads, rights-of-way, and appurtenant drainage facilities to a
638 homeowners’ association for the subdivision, if the following
639 conditions have been met:
640 1. The homeowners’ association has requested the
641 abandonment and conveyance in writing for the purpose of
642 converting the subdivision to a gated neighborhood with
643 restricted public access.
644 2. No fewer than four-fifths of the owners of record of
645 property located in the subdivision have consented in writing to
646 the abandonment and simultaneous conveyance to the homeowners’
647 association.
648 3. The homeowners’ association is both a corporation not
649 for profit organized and in good standing under chapter 617, and
650 an a “homeowners’ association” as defined in s. 718.103
651 720.301(9) with the power to levy and collect assessments for
652 routine and periodic major maintenance and operation of street
653 lighting, drainage, sidewalks, and pavement in the subdivision.
654 4. The homeowners’ association has entered into and
655 executed such agreements, covenants, warranties, and other
656 instruments; has provided, or has provided assurance of, such
657 funds, reserve funds, and funding sources; and has satisfied
658 such other requirements and conditions as may be established or
659 imposed by the county with respect to the ongoing operation,
660 maintenance, and repair and the periodic reconstruction or
661 replacement of the roads, drainage, street lighting, and
662 sidewalks in the subdivision after the abandonment by the
663 county.
664 Section 15. Paragraph (b) of subsection (7) of section
665 373.62, Florida Statutes, is amended to read:
666 373.62 Water conservation; automatic sprinkler systems.—
667 (7)
668 (b) For purposes of this subsection, the term:
669 1. “Monitoring entity” means a local government, community
670 development district created pursuant to chapter 190, a
671 homeowners’ association created pursuant to chapter 720, a
672 common interest community condominium association created
673 pursuant to chapter 718, a cooperative created pursuant to
674 chapter 719, or a public or private utility.
675 2. “Soil moisture sensor” means a soil-based device that
676 assesses the available plant soil moisture in order to minimize
677 the unnecessary use of water and optimize the effectiveness of
678 an irrigation system.
679 3. “Soil moisture sensor control system” is the collective
680 term for an entire soil moisture sensor system that has remote
681 monitoring and adjustment capability.
682 Section 16. Paragraph (a) of subsection (4) of section
683 380.0651, Florida Statutes, is amended to read:
684 380.0651 Statewide guidelines and standards.—
685 (4) Two or more developments, represented by their owners
686 or developers to be separate developments, shall be aggregated
687 and treated as a single development under this chapter when they
688 are determined to be part of a unified plan of development and
689 are physically proximate to one other.
690 (a) The criteria of three of the following subparagraphs
691 must be met in order for the state land planning agency to
692 determine that there is a unified plan of development:
693 1.a. The same person has retained or shared control of the
694 developments;
695 b. The same person has ownership or a significant legal or
696 equitable interest in the developments; or
697 c. There is common management of the developments
698 controlling the form of physical development or disposition of
699 parcels of the development.
700 2. There is a reasonable closeness in time between the
701 completion of 80 percent or less of one development and the
702 submission to a governmental agency of a master plan or series
703 of plans or drawings for the other development which is
704 indicative of a common development effort.
705 3. A master plan or series of plans or drawings exists
706 covering the developments sought to be aggregated which have
707 been submitted to a local general-purpose government, water
708 management district, the Florida Department of Environmental
709 Protection, or the Division of Common Interest Communities
710 Florida Condominiums, Timeshares, and Mobile Homes for
711 authorization to commence development. The existence or
712 implementation of a utility’s master utility plan required by
713 the Public Service Commission or general-purpose local
714 government or a master drainage plan shall not be the sole
715 determinant of the existence of a master plan.
716 4. There is a common advertising scheme or promotional plan
717 in effect for the developments sought to be aggregated.
718 Section 17. Subsection (3) of section 418.22, Florida
719 Statutes, is amended to read:
720 418.22 Powers of recreation districts.—The charter of a
721 recreation district may grant to the recreation district the
722 following powers and all further or additional powers as the
723 governing body of the municipality or county establishing the
724 district may deem necessary or useful in order to exercise the
725 powers for which provision is hereinafter made. The powers which
726 may be granted by such charter include the following:
727 (3) To acquire, purchase, construct, improve, and equip
728 recreational facilities of all types, including real and
729 personal property, within the boundaries of the district; such
730 acquisition may be by purchase, lease, gift, or exercise of the
731 power of eminent domain. If the governing body of the
732 municipality or county that created the recreation district for
733 exclusive use by a common interest community condominium
734 established under chapter 718 or a cooperative established under
735 chapter 719 makes the finding described in s. 418.24(4), the
736 governing body of the district may make the recreational
737 facilities available exclusively for district residents and
738 property owners, and may restrict any access to recreational
739 facilities by nonresidents by rules adopted by the governing
740 body of the district. Prior to any vote of the electors in the
741 district adopting or amending a charter pursuant to s. 418.20,
742 the governing body shall decide whether the criteria in s.
743 418.24(4) apply and whether the recreation district shall be
744 available exclusively for the district residents. The recreation
745 district may construct and maintain security buildings and other
746 structures needed to regulate access to, and provide security
747 for, the recreational facilities.
748 Section 18. Subsection (4) of section 418.24, Florida
749 Statutes, is amended to read:
750 418.24 Filing of ordinance.—Any ordinance creating or
751 amending the charter of a recreation district, upon being
752 finally adopted, shall be filed in the minutes of the governing
753 body of the municipality or county, and certified copies thereof
754 shall be filed with the county clerk of the county in which said
755 district is located and with the property appraiser of said
756 county. The charter of a recreation district may contain
757 findings by the governing body of the municipality or county:
758 (4) That, for recreation districts created for exclusive
759 use by a condominium established pursuant to chapter 718 or a
760 cooperative established under chapter 719, based upon the number
761 of residents, potential for proliferation of crime, automobile
762 traffic flow, district development, availability of other
763 recreational facilities outside the district, excessive noise
764 levels, or other factors applicable to the particular district,
765 a valid and paramount public purpose will be served by making
766 the recreational facilities available exclusively for district
767 residents and property owners.
768
769 If such charter contains any one or more such findings, each
770 such finding may be reviewed by a court only as part of any
771 review of the ordinance making such finding.
772 Section 19. Subsection (5) of section 455.116, Florida
773 Statutes, is amended to read:
774 455.116 Regulation trust funds.—The following trust funds
775 shall be placed in the department:
776 (5) Division of Common Interest Communities Florida
777 Condominiums, Timeshares, and Mobile Homes Trust Fund.
778 Section 20. Subsection (2) of section 468.436, Florida
779 Statutes, is amended to read:
780 468.436 Disciplinary proceedings.—
781 (2) The following acts constitute grounds for which the
782 disciplinary actions in subsection (4) may be taken:
783 (a) Violation of any provision of s. 455.227(1).
784 (b)1. Violation of any provision of this part.
785 2. Violation of any lawful order or rule rendered or
786 adopted by the department or the council.
787 3. Being convicted of or pleading nolo contendere to a
788 felony in any court in the United States.
789 4. Obtaining a license or certification or any other order,
790 ruling, or authorization by means of fraud, misrepresentation,
791 or concealment of material facts.
792 5. Committing acts of gross misconduct or gross negligence
793 in connection with the profession.
794 6. Contracting, on behalf of an association, with any
795 entity in which the licensee has a financial interest that is
796 not disclosed.
797 7. Violating any provision of chapter 718, chapter 719, or
798 chapter 720 during the course of performing community
799 association management services pursuant to a contract with a
800 community association as defined in s. 468.431(1).
801 Section 21. Section 475.455, Florida Statutes, is amended
802 to read:
803 475.455 Exchange of disciplinary information.—The
804 commission shall inform the Division of Common Interest
805 Communities Florida Condominiums, Timeshares, and Mobile Homes
806 of the department of Business and Professional Regulation of any
807 disciplinary action the commission has taken against any of its
808 licensees. The division shall inform the commission of any
809 disciplinary action the division has taken against any broker or
810 sales associate registered with the division.
811 Section 22. Paragraph (a) of subsection (4) of section
812 509.013, Florida Statutes, is amended to read:
813 509.013 Definitions.—As used in this chapter, the term:
814 (4)(a) “Public lodging establishment” includes a transient
815 public lodging establishment as defined in subparagraph 1. and a
816 nontransient public lodging establishment as defined in
817 subparagraph 2.
818 1. “Transient public lodging establishment” means any unit,
819 group of units, dwelling, building, or group of buildings within
820 a single complex of buildings which is rented to guests more
821 than three times in a calendar year for periods of less than 30
822 days or 1 calendar month, whichever is less, or which is
823 advertised or held out to the public as a place regularly rented
824 to guests.
825 2. “Nontransient public lodging establishment” means any
826 unit, group of units, dwelling, building, or group of buildings
827 within a single complex of buildings which is rented to guests
828 for periods of at least 30 days or 1 calendar month, whichever
829 is less, or which is advertised or held out to the public as a
830 place regularly rented to guests for periods of at least 30 days
831 or 1 calendar month.
832
833 License classifications of public lodging establishments, and
834 the definitions therefor, are set out in s. 509.242. For the
835 purpose of licensure, the term does not include common interest
836 community condominium common elements as defined in s. 718.103.
837 Section 23. Subsection (2) of section 509.241, Florida
838 Statutes, is amended to read:
839 509.241 Licenses required; exceptions.—
840 (2) APPLICATION FOR LICENSE.—Each person who plans to open
841 a public lodging establishment or a public food service
842 establishment shall apply for and receive a license from the
843 division prior to the commencement of operation. A common
844 interest community condominium association, as defined in s.
845 718.103, which does not own any units classified as vacation
846 rentals or timeshare projects under s. 509.242(1)(c) or (g) is
847 not required to apply for or receive a public lodging
848 establishment license.
849 Section 24. Section 509.512, Florida Statutes, is amended
850 to read:
851 509.512 Timeshare plan developer and exchange company
852 exemption.—Sections 509.501-509.511 do not apply to a developer
853 of a timeshare plan or an exchange company approved by the
854 Division of Common Interest Communities Florida Condominiums,
855 Timeshares, and Mobile Homes pursuant to chapter 721, but only
856 to the extent that the developer or exchange company engages in
857 conduct regulated under chapter 721.
858 Section 25. Subsection (4) of section 553.835, Florida
859 Statutes, is amended to read:
860 553.835 Implied warranties.—
861 (4) There is no cause of action in law or equity available
862 to a purchaser of a home or to a homeowners’ association based
863 upon the doctrine or theory of implied warranty of fitness and
864 merchantability or habitability for damages to offsite
865 improvements. However, this section does not alter or limit the
866 existing rights of purchasers of homes or homeowners’
867 associations to pursue any other cause of action arising from
868 defects in offsite improvements based upon contract, tort, or
869 statute, including, but not limited to, s. 718.203 ss. 718.203
870 and 719.203.
871 Section 26. Subsection (2) of section 558.002, Florida
872 Statutes, is amended to read:
873 558.002 Definitions.—As used in this chapter, the term:
874 (2) “Association” has the same meaning as in s. 718.103(2),
875 s. 719.103(2), s. 720.301(9), or s. 723.075.
876 Section 27. Subsection (1) of section 559.935, Florida
877 Statutes, is amended to read:
878 559.935 Exemptions.—
879 (1) This part does not apply to:
880 (a) A bona fide employee of a seller of travel who is
881 engaged solely in the business of her or his employer;
882 (b) Any direct common carrier of passengers or property
883 regulated by an agency of the Federal Government or employees of
884 such carrier when engaged solely in the transportation business
885 of the carrier as identified in the carrier’s certificate;
886 (c) An intrastate common carrier of passengers or property
887 selling only transportation as defined in the applicable state
888 or local registration or certification, or employees of such
889 carrier when engaged solely in the transportation business of
890 the carrier;
891 (d) Hotels, motels, or other places of public accommodation
892 selling public accommodations, or employees of such hotels,
893 motels, or other places of public accommodation, when engaged
894 solely in making arrangements for lodging, accommodations, or
895 sightseeing tours within the state, or taking reservations for
896 the traveler with times, dates, locations, and accommodations
897 certain at the time the reservations are made, provided that
898 hotels and motels registered with the Department of Business and
899 Professional Regulation pursuant to chapter 509 are excluded
900 from the provisions of this chapter;
901 (e) Persons involved solely in the rental, leasing, or sale
902 of residential property;
903 (f) Persons involved solely in the rental, leasing, or sale
904 of transportation vehicles;
905 (g) Persons who make travel arrangements for themselves;
906 for their employees or agents; for distributors, franchisees, or
907 dealers of the persons’ products or services; for entities which
908 are financially related to the persons; or for the employees or
909 agents of the distributor, franchisee, or dealer or financially
910 related entity;
911 (h) A developer of a timeshare plan or an exchange company
912 approved by the Division of Common Interest Communities Florida
913 Condominiums, Timeshares, and Mobile Homes pursuant to chapter
914 721, but only to the extent that the developer or exchange
915 company engages in conduct regulated under chapter 721; or
916 (i) Persons or entities engaged solely in offering diving
917 services, including classes and sales or rentals of equipment,
918 when engaged in making any prearranged travel-related or
919 tourist-related services in conjunction with a primarily dive
920 related event.
921 Section 28. Subsection (13) of section 617.01401, Florida
922 Statutes, is amended to read:
923 617.01401 Definitions.—As used in this chapter, the term:
924 (13) “Mutual benefit corporation” means a domestic
925 corporation that is not organized primarily or exclusively for
926 religious purposes; is not recognized as exempt under s.
927 501(c)(3) of the Internal Revenue Code; and is not organized for
928 a public or charitable purpose that is required upon its
929 dissolution to distribute its assets to the United States, a
930 state, a local subdivision thereof, or a person that is
931 recognized as exempt under s. 501(c)(3) of the Internal Revenue
932 Code. The term does not include an association organized under
933 chapter 718, chapter 719, chapter 720, or chapter 721, or any
934 corporation where membership in the corporation is required
935 pursuant to a document recorded in county property records.
936 Section 29. Subsection (5) of section 617.0505, Florida
937 Statutes, is amended to read:
938 617.0505 Distributions; exceptions.—Except as authorized in
939 s. 617.1302, a corporation may not make distributions to its
940 members, directors, or officers.
941 (5) A corporation that is regulated by chapter 718, chapter
942 719, chapter 720, chapter 721, or chapter 723, or a corporation
943 where membership in such corporation is required pursuant to a
944 document recorded in the county property records, may make
945 refunds to its members, giving credits to its members,
946 disbursing insurance proceeds to its members, or disbursing or
947 paying settlements to its members without violating this
948 section.
949 Section 30. Paragraph (c) of subsection (1) and subsection
950 (6) of section 617.0601, Florida Statutes, are amended to read:
951 617.0601 Members, generally.—
952 (1)
953 (c) This subsection does not apply to any common interest
954 community condominium association organized under chapter 718.
955 (6) Subsections (1), (2), (3), and (4) do not apply to a
956 corporation that is an association as defined in s. 718.103(2)
957 720.301.
958 Section 31. Subsection (6) of section 617.0701, Florida
959 Statutes, is amended to read:
960 617.0701 Meetings of members, generally; failure to hold
961 annual meeting; special meeting; consent to corporate actions
962 without meetings; waiver of notice of meetings.—
963 (6) Subsections (1) and (3) do not apply to any corporation
964 that is an association as defined in s. 718.103(2) 720.301; a
965 corporation regulated by chapter 718, chapter 719, chapter 720,
966 chapter 721, or chapter 723; or a corporation where membership
967 in such corporation is required pursuant to a document recorded
968 in the county property records.
969 Section 32. Subsection (7) of section 617.0721, Florida
970 Statutes, is amended to read:
971 617.0721 Voting by members.—
972 (7) Subsections (1), (5), and (6) do not apply to a
973 corporation that is an association, as defined in s. 720.301, or
974 a corporation regulated by chapter 718 or chapter 719.
975 Section 33. Subsection (1) of section 617.0802, Florida
976 Statutes, is amended to read:
977 617.0802 Qualifications of directors.—
978 (1) Directors must be natural persons who are 18 years of
979 age or older but need not be residents of this state or members
980 of the corporation unless the articles of incorporation or
981 bylaws so require. For a corporation organized according to the
982 provisions of s. 501(c)(3) of the Internal Revenue Code of 1986,
983 as amended, but not for a corporation regulated by chapter 718,
984 chapter 719, chapter 720, chapter 721, or chapter 723 or a
985 corporation for which membership in such corporation is required
986 pursuant to a document recorded in the county property records,
987 one director may be 15 years of age or older if so permitted in
988 the articles of incorporation or bylaws or by resolution of the
989 board of directors. The articles of incorporation or the bylaws
990 may prescribe additional qualifications for directors.
991 Section 34. Subsection (3) of section 617.0808, Florida
992 Statutes, is amended to read:
993 617.0808 Removal of directors.—
994 (3) This section does not apply to any corporation that is
995 an association, as defined in s. 718.103(2) 720.301, or a
996 corporation regulated under chapter 718 or chapter 719.
997 Section 35. Section 617.0831, Florida Statutes, is amended
998 to read:
999 617.0831 Indemnification and liability of officers,
1000 directors, employees, and agents.—Except as provided in s.
1001 617.0834, ss. 607.0831 and 607.0850 apply to a corporation
1002 organized under this act and a rural electric cooperative
1003 organized under chapter 425. Any reference to “directors” in
1004 those sections includes the directors, managers, or trustees of
1005 a corporation organized under this act or of a rural electric
1006 cooperative organized under chapter 425. However, the term
1007 “director” as used in ss. 607.0831 and 607.0850 does not include
1008 a director appointed by the developer to the board of directors
1009 of a common interest community condominium association under
1010 chapter 718, a cooperative association under chapter 719, a
1011 homeowners’ association defined in s. 720.301, or a timeshare
1012 managing entity under chapter 721. Any reference to
1013 “shareholders” in those sections includes members of a
1014 corporation organized under this act and members of a rural
1015 electric cooperative organized under chapter 425.
1016 Section 36. Section 617.1606, Florida Statutes, is amended
1017 to read:
1018 617.1606 Access to records.—Sections 617.1601-617.1605 do
1019 not apply to a corporation that is an association, as defined in
1020 s. 718.103(2) 720.301, or a corporation regulated under chapter
1021 718 or chapter 719.
1022 Section 37. Section 617.1703, Florida Statutes, is amended
1023 to read:
1024 617.1703 Application of chapter.—In the event of any
1025 conflict between the provisions of this chapter and chapter 718
1026 regarding common interest communities condominiums, chapter 719
1027 regarding cooperatives, chapter 720 regarding homeowners’
1028 associations, chapter 721 regarding timeshares, or chapter 723
1029 regarding mobile home owners’ associations, the provisions of
1030 such other chapters shall apply. The provisions of ss. 617.0605
1031 617.0608 do not apply to corporations regulated by any of the
1032 foregoing chapters or to any other corporation where membership
1033 in the corporation is required pursuant to a document recorded
1034 in the county property records.
1035 Section 38. Paragraph (a) of subsection (2) of section
1036 624.462, Florida Statutes, is amended to read:
1037 624.462 Commercial self-insurance funds.—
1038 (2) As used in ss. 624.460-624.488, “commercial self
1039 insurance fund” or “fund” means a group of members, operating
1040 individually and collectively through a trust or corporation,
1041 that must be:
1042 (a) Established by:
1043 1. A not-for-profit trade association, industry
1044 association, or professional association of employers or
1045 professionals which has a constitution or bylaws, which is
1046 incorporated under the laws of this state, and which has been
1047 organized for purposes other than that of obtaining or providing
1048 insurance and operated in good faith for a continuous period of
1049 1 year;
1050 2. A self-insurance trust fund organized pursuant to s.
1051 627.357 and maintained in good faith for a continuous period of
1052 1 year for purposes other than that of obtaining or providing
1053 insurance pursuant to this section. Each member of a commercial
1054 self-insurance trust fund established pursuant to this
1055 subsection must maintain membership in the self-insurance trust
1056 fund organized pursuant to s. 627.357;
1057 3. A group of 10 or more health care providers, as defined
1058 in s. 627.351(4)(h), for purposes of providing medical
1059 malpractice coverage; or
1060 4. A not-for-profit group comprised of one or more
1061 community associations responsible for operating at least 50
1062 residential parcels or units created and operating under chapter
1063 718, chapter 719, chapter 720, chapter 721, or chapter 723 which
1064 restricts its membership to community associations only and
1065 which has been organized and maintained in good faith for the
1066 purpose of pooling and spreading the liabilities of its group
1067 members relating to property or casualty risk or surety
1068 insurance which, in accordance with applicable provisions of
1069 part I of chapter 626, appoints resident general lines agents
1070 only, and which does not prevent, impede, or restrict any
1071 applicant or fund participant from maintaining or selecting an
1072 agent of choice. The fund may not refuse to appoint the agent of
1073 record for any fund applicant or fund member and may not favor
1074 one or more such appointed agents over other appointed agents.
1075 Section 39. Subsection (19) of section 626.854, Florida
1076 Statutes, is amended to read:
1077 626.854 “Public adjuster” defined; prohibitions.—The
1078 Legislature finds that it is necessary for the protection of the
1079 public to regulate public insurance adjusters and to prevent the
1080 unauthorized practice of law.
1081 (19) Subsections (5)-(18) apply only to residential
1082 property insurance policies and common interest community
1083 condominium unit owner policies as described in s. 718.111(11).
1084 Section 40. Paragraph (c) of subsection (2) of section
1085 689.28, Florida Statutes, is amended to read:
1086 689.28 Prohibition against transfer fee covenants.—
1087 (2) DEFINITIONS.—As used in this section, the term:
1088 (c) “Transfer fee” means a fee or charge required by a
1089 transfer fee covenant and payable upon the transfer of an
1090 interest in real property, or payable for the right to make or
1091 accept such transfer, regardless of whether the fee or charge is
1092 a fixed amount or is determined as a percentage of the value of
1093 the property, the purchase price, or other consideration given
1094 for the transfer. The following are not transfer fees for
1095 purposes of this section:
1096 1. Any consideration payable by the grantee to the grantor
1097 for the interest in real property being transferred, including
1098 any subsequent additional consideration for the property payable
1099 by the grantee based upon any subsequent appreciation,
1100 development, or sale of the property. For the purposes of this
1101 subparagraph, an interest in real property may include a
1102 separate mineral estate and its appurtenant surface access
1103 rights.
1104 2. Any commission payable to a licensed real estate broker
1105 for the transfer of real property pursuant to an agreement
1106 between the broker and the grantor or the grantee, including any
1107 subsequent additional commission for that transfer payable by
1108 the grantor or the grantee based upon any subsequent
1109 appreciation, development, or sale of the property.
1110 3. Any interest, charges, fees, or other amounts payable by
1111 a borrower to a lender pursuant to a loan secured by a mortgage
1112 against real property, including, but not limited to, any fee
1113 payable to the lender for consenting to an assumption of the
1114 loan or a transfer of the real property subject to the mortgage,
1115 any fees or charges payable to the lender for estoppel letters
1116 or certificates, and any shared appreciation interest or profit
1117 participation or other consideration described in s. 687.03(4)
1118 and payable to the lender in connection with the loan.
1119 4. Any rent, reimbursement, charge, fee, or other amount
1120 payable by a lessee to a lessor under a lease, including, but
1121 not limited to, any fee payable to the lessor for consenting to
1122 an assignment, subletting, encumbrance, or transfer of the
1123 lease.
1124 5. Any consideration payable to the holder of an option to
1125 purchase an interest in real property or the holder of a right
1126 of first refusal or first offer to purchase an interest in real
1127 property for waiving, releasing, or not exercising the option or
1128 right upon the transfer of the property to another person.
1129 6. Any tax, fee, charge, assessment, fine, or other amount
1130 payable to or imposed by a governmental authority.
1131 7. Any fee, charge, assessment, fine, or other amount
1132 payable to a homeowners’, condominium, cooperative, mobile home,
1133 or property owners’ association pursuant to a declaration or
1134 covenant or law applicable to such association, including, but
1135 not limited to, fees or charges payable for estoppel letters or
1136 certificates issued by the association or its authorized agent.
1137 8. Any fee, charge, assessment, dues, contribution, or
1138 other amount imposed by a declaration or covenant encumbering
1139 four or more parcels in a community, as defined in s. 720.301,
1140 and payable to a nonprofit or charitable organization for the
1141 purpose of supporting cultural, educational, charitable,
1142 recreational, environmental, conservation, or other similar
1143 activities benefiting the community that is subject to the
1144 declaration or covenant.
1145 9. Any fee, charge, assessment, dues, contribution, or
1146 other amount pertaining to the purchase or transfer of a club
1147 membership relating to real property owned by the member,
1148 including, but not limited to, any amount determined by
1149 reference to the value, purchase price, or other consideration
1150 given for the transfer of the real property.
1151 10. Any payment required pursuant to an environmental
1152 covenant.
1153 Section 41. Section 702.09, Florida Statutes, is amended to
1154 read:
1155 702.09 Definitions.—For the purposes of ss. 702.07 and
1156 702.08 the words “decree of foreclosure” shall include a
1157 judgment or order rendered or passed in the foreclosure
1158 proceedings in which the decree of foreclosure shall be
1159 rescinded, vacated, and set aside; the word “mortgage” shall
1160 mean any written instrument securing the payment of money or
1161 advances and includes liens to secure payment of assessments
1162 arising under chapter chapters 718 and 719 and liens created
1163 pursuant to the recorded covenants of a homeowners’ association
1164 as defined in s. 712.01; the word “debt” shall include
1165 promissory notes, bonds, and all other written obligations given
1166 for the payment of money; the words “foreclosure proceedings”
1167 shall embrace every action in the circuit or county courts of
1168 this state wherein it is sought to foreclose a mortgage and sell
1169 the property covered by the same; and the word “property” shall
1170 mean and include both real and personal property.
1171 Section 42. Subsection (4) of section 712.01, Florida
1172 Statutes, is amended to read:
1173 712.01 Definitions.—As used in this law:
1174 (4) The term “homeowners’ association” means a homeowners’
1175 association as defined in s. 720.301, or an association of
1176 parcel owners which is authorized to enforce use restrictions
1177 that are imposed on the parcels.
1178 Section 43. Section 712.11, Florida Statutes, is amended to
1179 read:
1180 712.11 Covenant revitalization.—A homeowners’ association
1181 not otherwise subject to chapter 718 720 may use the procedures
1182 set forth in that chapter ss. 720.403-720.407 to revive
1183 covenants that have lapsed under the terms of this chapter.
1184 Section 44. Section 718.101, Florida Statutes, is amended
1185 to read:
1186 718.101 Short title.—This chapter shall be known and may be
1187 cited as the “Common Interest Community Condominium Act.”
1188 Section 45. Section 718.102, Florida Statutes, is amended
1189 to read:
1190 718.102 Purposes.—The purpose of this chapter is to:
1191 (1) To Give statutory recognition to the common interest
1192 community condominium form of ownership of residential real
1193 property and to the entities that operate common interest
1194 communities.
1195 (2) To Establish procedures for the creation, sale, and
1196 operation of parcels, interests, and units in common interest
1197 communities, including condominiums, homeowner parcels, and
1198 cooperative units, and for the operation of common interest
1199 community associations.
1200 (3) Protect the rights of common interest community
1201 association members without unduly impairing the association’s
1202 ability to perform its functions.
1203 (4) Clarify existing law, and correct unconscionable
1204 conditions and policies against the public interest, relating to
1205 common interest communities existing on or after the effective
1206 date of this act.
1207
1208 All common interest communities previously subject to chapters
1209 719 and 720, Florida Statutes 2014, are hereby transferred to
1210 the jurisdiction of this chapter. Every common interest
1211 community condominium created and existing in this state shall
1212 be subject to the provisions of this chapter.
1213 Section 46. Section 718.103, Florida Statutes, is amended
1214 to read:
1215 718.103 Definitions.—As used in this chapter, the term:
1216 (1) “Assessment” means a share of the funds that which are
1217 required for the payment of common expenses, which from time to
1218 time is assessed against the unit owner.
1219 (2) “Association” means an, in addition to any entity
1220 created to manage a responsible for the operation of common
1221 interest community in which membership is a condition of
1222 ownership of a unit or parcel in a planned development, a lot
1223 for a home or mobile home, or a unit that is part of a
1224 residential development scheme, an entity authorized to impose a
1225 fee necessary for the operation or maintenance of the common
1226 ownership real property, and elements owned in undivided shares
1227 by unit owners, any entity which operates or maintains other
1228 real property in which unit owners have use rights, where
1229 membership in the entity is composed exclusively of unit owners
1230 or their elected or appointed representatives and is a required
1231 condition of unit ownership.
1232 (3) “Association property” means that property, real and
1233 personal, which is owned or leased by, or is dedicated by a
1234 recorded plat to, the association for the use and benefit of its
1235 members.
1236 (4) “Board of administration” or “board” means the board of
1237 directors or other representative body which is responsible for
1238 administration of the association.
1239 (5) “Buyer” means a person who purchases a common interest
1240 community condominium unit. The term “purchaser” may be used
1241 interchangeably with the term “buyer.”
1242 (6) “Bylaws” means the bylaws of the association as they
1243 are amended from time to time.
1244 (7) “Committee” means a group of board members, unit
1245 owners, or board members and unit owners appointed by the board
1246 or a member of the board to make recommendations to the board
1247 regarding the proposed annual budget or to take action on behalf
1248 of the board.
1249 (8) “Common elements” or “common property” means the
1250 property portions of an identical or similar kind held by the
1251 individual owners as appurtenances to the individually owned
1252 lots or units and condominium property not included in the
1253 units.
1254 (9) “Common expenses” means all expenses properly incurred
1255 by the association in the performance of its duties, including
1256 expenses specified in s. 718.115.
1257 (10) “Common interest community” or “CIC” means a real
1258 estate development or neighborhood in which individually owned
1259 lots, units, or leaseholds are burdened by an obligation that
1260 cannot be avoided by nonuse or withdrawal. The term also means
1261 property that is owned in conjunction with others that agree to
1262 a form of governance and responsibility:
1263 (a) To pay for the use of, or contribute to the maintenance
1264 of, property held or enjoined in common by the individual
1265 owners;
1266 (b) To pay fees or assessments to an association that
1267 provides services or facilities to the common property or to the
1268 individually owned property, or that enforces other obligations
1269 burdening the property in the development or neighborhood;
1270 (c) To abide by a set of governing documents that create
1271 rights and responsibilities through covenants, restrictions, or
1272 other proprietary instruments;
1273 (d) To automatically become members of the community
1274 association when they purchase or become shareholders in
1275 property defined in the documents; or
1276 (e) To have an undivided ownership interest in the
1277 property.
1278 (12)(10) “Common surplus” means the amount of all receipts
1279 or revenues, including assessments, rents, or profits, collected
1280 by a common interest community condominium association which
1281 exceeds common expenses.
1282 (11) “Condominium” means that form of ownership of real
1283 property created pursuant to this chapter, which is comprised
1284 entirely of units that may be owned by one or more persons, and
1285 in which there is, appurtenant to each unit, an undivided share
1286 in common elements.
1287 (12) “Condominium parcel” means a unit, together with the
1288 undivided share in the common elements appurtenant to the unit.
1289 (11)(13) “Common interest community Condominium property”
1290 means the lands, leaseholds, and personal property that are
1291 subjected to common interest community condominium ownership,
1292 whether or not contiguous, and all improvements thereon and all
1293 easements and rights appurtenant thereto intended for use in
1294 connection with the common interest community condominium.
1295 (13) “Community association manager” or “CAM” means a
1296 person licensed pursuant to part VIII of chapter 468 to perform
1297 community association management services.
1298 (14) “Conspicuous type” means bold type in capital letters
1299 no smaller than the largest type, exclusive of headings, on the
1300 page on which it appears and, in all cases, at least 10-point
1301 type. Where conspicuous type is required, it must be separated
1302 on all sides from other type and print. Conspicuous type may be
1303 used in a contract for purchase and sale of a unit, a lease of a
1304 unit for more than 5 years, or a prospectus or offering circular
1305 only where required by law.
1306 (15) “Declaration,” or “declaration of common interest
1307 communities, condominium” “declaration of covenants and
1308 restrictions,” “proprietary lease,” or any similar term means
1309 the instrument or instruments by which a common interest
1310 community condominium is created, as they are from time to time
1311 amended and used in this chapter.
1312 (16) “Developer” means a person who creates a common
1313 interest community condominium or offers common interest
1314 community condominium parcels for sale or lease in the ordinary
1315 course of business, but does not include:
1316 (a) An owner or lessee of a common interest community
1317 condominium or cooperative unit who has acquired the unit for
1318 his or her own occupancy;
1319 (b) A cooperative association that creates a common
1320 interest community condominium by conversion of an existing
1321 residential cooperative after control of the association has
1322 been transferred to the unit owners if, following the
1323 conversion, the unit owners are the same persons who were unit
1324 owners of the cooperative and no units are offered for sale or
1325 lease to the public as part of the plan of conversion; or
1326 (c) A bulk assignee or bulk buyer as defined in s. 718.703;
1327 or
1328 (c)(d) A state, county, or municipal entity acting as a
1329 lessor and not otherwise named as a developer in the declaration
1330 of common interest community condominium.
1331 (17) “Division” means the Division of Common Interest
1332 Communities Florida Condominiums, Timeshares, and Mobile Homes
1333 of the Department of Business and Professional Regulation.
1334 (18) “Governing documents” or “documents” means the
1335 declaration and other recorded documents, including the articles
1336 of incorporation, bylaws, and rules and regulations that govern
1337 the operation of a common interest community association or
1338 determine the rights and obligations of the members of the
1339 common interest community.
1340 (19)(18) “Land” means the surface of a legally described
1341 parcel of real property and includes, unless otherwise specified
1342 in the declaration and whether separate from or including such
1343 surface, airspace lying above and subterranean space lying below
1344 such surface. However, if so defined in the declaration, the
1345 term “land” may mean all or any portion of the airspace or
1346 subterranean space between two legally identifiable elevations
1347 and may exclude the surface of a parcel of real property and may
1348 mean any combination of the foregoing, whether or not
1349 contiguous, or may mean a common interest community condominium
1350 unit.
1351 (20)(19) “Limited common elements” means those common
1352 elements that which are reserved for the use of a certain unit
1353 or units to the exclusion of all other units, as specified in
1354 the declaration.
1355 (21) “Master association” means a common interest community
1356 association whose members are also members or unit owners of
1357 common interest community sub-associations.
1358 (22) “Member” means the owner of property who shares common
1359 expenses.
1360 (23)(20) “Multi-common interest community multicondominium”
1361 means a real estate development containing two or more common
1362 interest communities condominiums, all of which are operated by
1363 the same association.
1364 (24)(a) “Notice” means reasonable procedures taken to
1365 ensure required information is provided to an intended
1366 recipient. The term shall be liberally construed if the property
1367 is configured in a way that prevents the posting of a notice in
1368 a conspicuous location.
1369 (b)1. The term includes electronic notice when required in
1370 this chapter.
1371 2. Consent to electronic notice and waiver of regular mail
1372 or hand delivery must be maintained in the official records and
1373 may be withdrawn at any time.
1374 3. Undeliverable electronic notice shall cause the e-mail
1375 address to be removed from future electronic notice until
1376 requested to be reinstated.
1377 4. Electronic notice must be sent in time for any rejected
1378 or undeliverable notice to be mailed by regular mail or hand
1379 delivered in order to maintain the required time schedule for
1380 notice.
1381 (25)(21) “Operation” or “operation of the common interest
1382 community condominium” includes the administration and
1383 management of the common interest community condominium
1384 property.
1385 (26)(22) “Rental agreement” means any written agreement, or
1386 oral agreement if for less duration than 1 year, providing for
1387 use and occupancy of premises.
1388 (27)(23) “Residential common interest community
1389 condominium” means a common interest community condominium
1390 consisting of two or more units, any of which are intended for
1391 use as a private temporary or permanent residence, except that a
1392 common interest community condominium is not a residential
1393 common interest community condominium if the use for which the
1394 units are intended is primarily commercial or industrial and not
1395 more than three units are intended to be used for private
1396 residence, and are intended to be used as housing for
1397 maintenance, managerial, janitorial, or other operational staff
1398 of the common interest community condominium. With respect to a
1399 common interest community condominium that is not a timeshare
1400 common interest community condominium, a residential unit
1401 includes a unit intended as a private temporary or permanent
1402 residence as well as a unit not intended for commercial or
1403 industrial use. With respect to a timeshare common interest
1404 community condominium, the timeshare instrument as defined in s.
1405 721.05(35) shall govern the intended use of each unit in the
1406 common interest community condominium. If a common interest
1407 community condominium is a residential common interest community
1408 condominium but contains units intended to be used for
1409 commercial or industrial purposes, then, with respect to those
1410 units which are not intended for or used as private residences,
1411 the common interest community condominium is not a residential
1412 common interest community condominium. A common interest
1413 community that condominium which contains both commercial and
1414 residential units is a mixed-use common interest community
1415 condominium and is subject to the requirements of s. 718.404.
1416 (28)(24) “Special assessment” means any assessment levied
1417 against a unit owner other than the assessment required by a
1418 budget adopted annually.
1419 (29) “Successor” or “subsequent developer” means any
1420 person, other than the creating developer or concurrent
1421 developer, who offers parcels for sale or lease in the ordinary
1422 course of business. However, the term does not include a
1423 financial lending institution receiving title to a number of
1424 units through foreclosure or deed in lieu of foreclosure unless
1425 the institution subsequently offers parcels for sale or lease in
1426 the ordinary course of business. Conveying all of such units to
1427 another person relieves the institution of developer
1428 responsibilities.
1429 (30)(25) “Timeshare estate” means any interest in a unit
1430 under which the exclusive right of use, possession, or occupancy
1431 of the unit circulates among the various purchasers of a
1432 timeshare plan pursuant to chapter 721 on a recurring basis for
1433 a period of time.
1434 (31)(26) “Timeshare unit” means a unit in which timeshare
1435 estates have been created.
1436 (32)(27) “Unit” means a part of the common interest
1437 community condominium property which is subject to exclusive
1438 ownership. A unit may be in improvements, land, or land and
1439 improvements together, as specified in the declaration. The term
1440 includes any part of the property which is subject to exclusive
1441 ownership. A unit may be in improvements, land, or land and
1442 improvements together, as specified in the documents, and
1443 includes:
1444 (a) A condominium form of ownership of real property
1445 created pursuant to this chapter comprised entirely of units
1446 that may be owned by one or more persons, and in which there is,
1447 appurtenant to each unit, an undivided share in common elements.
1448 (b) A cooperative form of ownership of real property
1449 wherein legal title is vested in a corporation or other entity
1450 and the beneficial use is evidenced by an ownership interest in
1451 the association and a lease or other muniment of title or
1452 possession granted by the association as the owner of all the
1453 cooperative property.
1454 (c) A platted or unplatted lot, tract, unit, or other
1455 subdivision of real property within a community, as described in
1456 the governing documents, which is capable of separate
1457 conveyance, and of which the parcel owner is obligated by the
1458 documents to be a member of an association that serves the
1459 community.
1460 (33)(28) “Unit owner,” or “owner of a unit,” or “member”
1461 means a record owner of legal title or a lessee of a cooperative
1462 unit to a common interest community condominium parcel.
1463 (34)(29) “Voting certificate” means a document which
1464 designates one of the record title owners, or the corporate,
1465 partnership, or entity representative, who is authorized to vote
1466 on behalf of a common interest community condominium unit that
1467 is owned by more than one owner or by any entity. If there is
1468 exclusive joint ownership by a husband and wife, a voting
1469 certificate is not required.
1470 (35)(30) “Voting interests” means the voting rights
1471 distributed to the association members pursuant to s.
1472 718.104(6)(n) 718.104(4)(j). In a multi-common interest
1473 community multicondominium association, the voting interests of
1474 the association are the voting rights distributed to the unit
1475 owners in all common interest communities condominiums operated
1476 by the association. On matters related to a specific common
1477 interest community condominium in a multi-common interest
1478 community multicondominium association, the voting interests of
1479 the common interest community condominium are the voting rights
1480 distributed to the unit owners in that common interest community
1481 condominium.
1482 Section 47. Section 718.1035, Florida Statutes, is amended
1483 to read:
1484 718.1035 Power of attorney; compliance with chapter.—The
1485 use of a power of attorney that affects any aspect of the
1486 operation of a common interest community condominium shall be
1487 subject to and in compliance with the provisions of this chapter
1488 and all common interest community condominium documents,
1489 association rules and other rules adopted pursuant to this
1490 chapter, and all other covenants, conditions, and restrictions
1491 in force at the time of the execution of the power of attorney.
1492 The use of a power of attorney does not create eligibility to
1493 serve on the board of directors.
1494 Section 48. Section 718.104, Florida Statutes, is amended
1495 to read:
1496 718.104 Creation of common interest communities
1497 condominiums; contents of declaration.—Every common interest
1498 community condominium created in this state shall be created
1499 pursuant to this chapter.
1500 (1) A common interest community condominium may be created
1501 on land owned in fee simple or held under a lease complying with
1502 the provisions of s. 718.401.
1503 (2) A common interest community condominium is created by
1504 recording a declaration in the public records of the county
1505 where the land is located, executed and acknowledged with the
1506 requirements for a deed. All persons who have record title to
1507 the interest in the land being submitted to common interest
1508 community condominium ownership, or their lawfully authorized
1509 agents, must join in the execution of the declaration. Upon the
1510 recording of the declaration, or an amendment adding a phase to
1511 the common interest community condominium under s. 718.403(6),
1512 all units described in the declaration or phase amendment as
1513 being located in or on the land then being submitted to common
1514 interest community condominium ownership shall come into
1515 existence, regardless of the state of completion of planned
1516 improvements in which the units may be located or any other
1517 requirement or description that a declaration may provide. Upon
1518 recording the declaration of common interest community
1519 condominium pursuant to this section, the developer shall file
1520 the recording information with the division within 120 calendar
1521 days on a form prescribed by the division.
1522 (3) All persons who have any record interest in any
1523 mortgage encumbering the interest in the land being submitted to
1524 common interest community condominium ownership must either join
1525 in the execution of the declaration or execute, with the
1526 requirements for deed, and record, a consent to the declaration
1527 or an agreement subordinating their mortgage interest to the
1528 declaration.
1529 (4) All provisions of the common interest community
1530 documents must be reasonable and are enforceable equitable
1531 servitudes that run with the land and are effective until the
1532 common interest community is terminated.
1533 (5) The declaration provisions of the common interest
1534 community documents shall be liberally construed to not
1535 challenge the property rights and quiet enjoyment of owners.
1536 (6)(4) The documents declaration must contain or provide
1537 for the following matters:
1538 (a) A statement submitting the property to common interest
1539 community condominium ownership.
1540 (b) The name by which the common interest community
1541 condominium property is to be identified, which shall include
1542 the word “condominium,” “homeowner,” or “cooperative” or be
1543 followed by the appropriate designation. words “a condominium.”
1544 (c) The legal description of the land and, if a leasehold
1545 estate is submitted to the common interest community
1546 condominium, an identification of the lease.
1547 (d) An identification of each unit by letter, name, or
1548 number, or combination thereof, so that no unit bears the same
1549 designation as any other unit.
1550 (e) A survey of the land which meets the minimum technical
1551 standards of practice established by the Board of Professional
1552 Surveyors and Mappers, pursuant to s. 472.027, and a graphic
1553 description of the improvements in which units are located and a
1554 plot plan thereof that, together with the documents declaration,
1555 are in sufficient detail to identify the common elements and
1556 each unit and their relative locations and approximate
1557 dimensions. Failure of the survey to meet the minimum technical
1558 standards of practice does not invalidate an otherwise validly
1559 created common interest community condominium.
1560 (f) The survey, graphic description, and plot plan may be
1561 in the form of exhibits consisting of building plans, floor
1562 plans, maps, surveys, or sketches. If the construction of the
1563 common interest community condominium is not substantially
1564 completed, there shall be a statement to that effect, and, upon
1565 substantial completion of construction, the developer or the
1566 association shall amend the documents declaration to include the
1567 certificate described in paragraphs (g)-(i) below.
1568 (g) The amendment may be accomplished by referring to the
1569 recording data of a survey of the common interest community
1570 condominium that complies with the certificate. A certificate of
1571 a surveyor and mapper authorized to practice in this state shall
1572 be included in or attached to the documents declaration or the
1573 survey or graphic description as recorded under s. 718.105 that
1574 the construction of the improvements is substantially complete
1575 so that the material, together with the provisions of the
1576 documents declaration describing the common interest community
1577 condominium property, is an accurate representation of the
1578 location and dimensions of the improvements and so that the
1579 identification, location, and dimensions of the common elements
1580 or common property and of each unit can be determined from these
1581 materials.
1582 (h) Completed units within each substantially completed
1583 building in a common interest community condominium development
1584 may be conveyed to buyers purchasers, notwithstanding that other
1585 buildings in the common interest community condominium are not
1586 substantially completed, provided that all planned improvements,
1587 including, but not limited to, landscaping, utility services and
1588 access to the unit, and common-element facilities serving such
1589 building, as set forth in the documents declaration, are first
1590 completed and the documents are declaration of condominium is
1591 first recorded and provided that as to the units being conveyed
1592 there is a certificate of a surveyor and mapper as required
1593 above, including certification that all planned improvements,
1594 including, but not limited to, landscaping, utility services and
1595 access to the unit, and common-element facilities serving the
1596 building in which the units to be conveyed are located have been
1597 substantially completed, and such certificate is recorded with
1598 the original documents declaration or as an amendment to such
1599 documents declaration. This section does not, however, operate
1600 to require development of improvements and amenities declared to
1601 be included in future phases pursuant to s. 718.403 before
1602 conveying a unit as provided in this paragraph.
1603 (i) For the purposes of this section, a “certificate of a
1604 surveyor and mapper” means certification by a surveyor and
1605 mapper in the form provided in paragraph (g), paragraph (h), and
1606 this paragraph and may include, along with certification by a
1607 surveyor and mapper, when appropriate, certification by an
1608 architect or engineer authorized to practice in this state.
1609 Notwithstanding the requirements of substantial completion
1610 provided in this section, paragraph (g), paragraph (h), and this
1611 paragraph do does not prohibit or impair the validity of a
1612 mortgage encumbering units together with an undivided interest
1613 in the common elements as described in the documents of a common
1614 interest community a declaration of condominium recorded before
1615 the recording of a certificate of a surveyor and mapper as
1616 provided in this paragraph.
1617 (j)(f) The undivided share of ownership of the common
1618 elements, common property, and common surplus of the common
1619 interest community condominium that is appurtenant to each unit
1620 stated as a percentage or a fraction of the whole. In the
1621 documents declaration of condominium for residential units
1622 condominiums created after April 1, 1992, the ownership share of
1623 the common elements assigned to each residential unit shall be
1624 based either upon the total square footage of each residential
1625 unit in uniform relationship to the total square footage of each
1626 other residential unit in the common interest community
1627 condominium or on an equal fractional basis.
1628 (k)(g) The percentage or fractional shares of liability for
1629 common expenses of the common interest community condominium,
1630 which, for all residential units, must be the same as the
1631 undivided shares of ownership of the common elements and common
1632 surplus appurtenant to each unit as provided for in paragraph
1633 (j), except when such expenses are not related to the size of
1634 the unit. Expenses not related to the size of the unit may be
1635 allocated on a per-unit basis (f).
1636 (l)(h) If a developer reserves the right, in the documents
1637 a declaration recorded on or after July 1, 2000, to create a
1638 multi-common interest community multicondominium, the documents
1639 declaration must state, or provide a specific formula for
1640 determining, the fractional or percentage shares of liability
1641 for the common expenses of the association and of ownership of
1642 the common surplus of the association to be allocated to the
1643 units in each common interest community condominium to be
1644 operated by the association. If the documents a declaration
1645 recorded on or after July 1, 2000, for a common interest
1646 community condominium operated by a multi-common interest
1647 community multicondominium association as originally recorded
1648 fail fails to so provide, the share of liability for the common
1649 expenses of the association and of ownership of the common
1650 surplus of the association allocated to each unit in each common
1651 interest community condominium operated by the association shall
1652 be equal on a per-unit basis a fraction of the whole, the
1653 numerator of which is the number “one” and the denominator of
1654 which is the total number of units in all condominiums operated
1655 by the association.
1656 (m)(i) The name of the association, which must be a
1657 corporation for profit or a corporation not for profit. An
1658 association not incorporated on July 1, 2016, must be
1659 incorporated within 1 year after the effective date of the
1660 documents.
1661 (n)(j) Unit owners’ membership and voting rights in the
1662 association.
1663 (o)(k) The document or documents creating the association,
1664 which may be attached as an exhibit.
1665 (p)(l) A copy of the bylaws, which shall be attached as an
1666 exhibit. Defects or omissions in the bylaws shall not affect the
1667 validity of the common interest community condominium or title
1668 to the common interest community condominium parcels.
1669 (q)(m) Other desired provisions consistent not inconsistent
1670 with this chapter.
1671 (r)(n) The creation of a nonexclusive easement for ingress
1672 and egress over streets, walks, and other rights-of-way serving
1673 the units of a common interest community condominium, as part of
1674 the common elements necessary to provide reasonable access to
1675 the public ways, or a dedication of the streets, walks, and
1676 other rights-of-way to the public. All easements for ingress and
1677 egress shall not be encumbered by any leasehold or lien other
1678 than those on the common interest community condominium parcels,
1679 unless:
1680 1. Any such lien is subordinate to the rights of unit
1681 owners, or
1682 2. The holder of any encumbrance or leasehold of any
1683 easement has executed and recorded an agreement that the use
1684 rights of each unit owner will not be terminated as long as the
1685 unit owner has not been evicted because of a default under the
1686 encumbrance or lease, and the use-rights of any mortgagee of a
1687 unit who has acquired title to a unit may not be terminated.
1688 (o) If timeshare estates will or may be created with
1689 respect to any unit in the condominium, a statement in
1690 conspicuous type declaring that timeshare estates will or may be
1691 created with respect to units in the condominium. In addition,
1692 the degree, quantity, nature, and extent of the timeshare
1693 estates that will or may be created shall be defined and
1694 described in detail in the declaration, with a specific
1695 statement as to the minimum duration of the recurring periods of
1696 rights of use, possession, or occupancy that may be created with
1697 respect to any unit.
1698 (7)(5) The documents declaration as originally recorded or
1699 as amended under the procedures provided therein may include
1700 reasonable covenants and restrictions concerning the use,
1701 occupancy, and transfer of the units permitted by law with
1702 reference to real property. However, the rule against
1703 perpetuities shall not defeat a right given any person or entity
1704 by the documents declaration for the purpose of allowing unit
1705 owners to retain reasonable control over the use, occupancy, and
1706 transfer of units.
1707 (8)(6) A person who joins in, or consents to the execution
1708 of, a governing document declaration subjects his or her
1709 interest in the common interest community condominium property
1710 to the provisions of the document declaration.
1711 (9)(7) All provisions of the governing document declaration
1712 are enforceable equitable servitudes, run with the land, and are
1713 effective until the common interest community condominium is
1714 terminated.
1715 Section 49. Section 718.1045, Florida Statutes, is amended
1716 to read:
1717 718.1045 Timeshare estates; limitation on creation.—No
1718 timeshare estates shall be created with respect to any common
1719 interest community condominium unit except pursuant to
1720 provisions in the declaration expressly permitting the creation
1721 of such estates.
1722 Section 50. Section 718.105, Florida Statutes, is amended
1723 to read:
1724 718.105 Recording of documents declaration.—
1725 (1) When executed as required by s. 718.104, the documents
1726 shall be recorded in the county where the common interest
1727 community is located a declaration together with all exhibits
1728 and all amendments, and are is entitled to recordation as an
1729 agreement relating to the conveyance of land.
1730 (2) Graphic descriptions of improvements constituting
1731 exhibits to the documents a declaration, when accompanied by the
1732 certificate of a surveyor required by s. 718.104, may be
1733 recorded as a part of the documents a declaration without
1734 approval of any public body or officer.
1735 (3) When the documents are recorded pursuant to this
1736 section, a certificate or receipted bill shall be filed with the
1737 clerk of the circuit court in the county where the property is
1738 located showing that all taxes due and owing on the property
1739 have been paid in full as of the date of recordation recording
1740 the declaration may, for his or her convenience, file the
1741 exhibits of a declaration which contains graphic descriptions of
1742 improvements in a separate book, and shall indicate the place of
1743 filing upon the margin of the record of the declaration.
1744 (4)(a) If the documents do declaration does not have the
1745 certificate or the survey or graphic description of the
1746 improvements required under s. 718.104(6) 718.104(4)(e), the
1747 developer shall deliver therewith to the clerk an estimate,
1748 signed by a surveyor authorized to practice in this state, of
1749 the cost of a final survey or graphic description providing the
1750 certificate prescribed by s. 718.104(6) 718.104(4)(e), and shall
1751 deposit with the clerk the sum of money specified in the
1752 estimate.
1753 (b) The clerk shall hold the money until an amendment to
1754 the documents declaration is recorded that complies with the
1755 certificate requirements of s. 718.104(6) 718.104(4)(e). At that
1756 time, the clerk shall pay to the person presenting the amendment
1757 to the declaration the sum of money deposited, without making
1758 any charge for holding the sum, receiving it, or paying out,
1759 other than the fees required for recording the common interest
1760 community condominium documents.
1761 (c) If the sum of money held by the clerk has not been paid
1762 to the developer or association as provided in paragraph (b)
1763 within 3 5 years after the date the documents were declaration
1764 was originally recorded, the clerk may notify, in writing, the
1765 registered agent of the association that the sum is still
1766 available and the purpose for which it was deposited. If the
1767 association does not record the certificate within 90 days after
1768 the clerk has given the notice, the clerk may disburse the money
1769 to the developer. If the developer cannot be located, the clerk
1770 shall disburse the money to the Division of Common Interest
1771 Communities Florida Condominiums, Timeshares, and Mobile Homes
1772 for deposit in the Division of Common Interest Communities
1773 Florida Condominiums, Timeshares, and Mobile Homes Trust Fund.
1774 (5) When documents are a declaration of condominium is
1775 recorded pursuant to this section, a certificate or receipted
1776 bill shall be filed with the clerk of the circuit court in the
1777 county where the property is located showing that all taxes due
1778 and owing on the property have been paid in full as of the date
1779 of recordation.
1780 Section 51. Section 718.106, Florida Statutes, is amended
1781 to read:
1782 718.106 Common interest community condominium parcels;
1783 appurtenances; possession and enjoyment.—
1784 (1) A common interest community condominium parcel,
1785 including a community created as a leasehold, created by the
1786 documents declaration is a separate parcel of real property,
1787 even though the condominium is created on a leasehold.
1788 (2) There shall pass with a unit, as appurtenances thereto:
1789 (a) An undivided share in the common elements and common
1790 surplus.
1791 (b) The exclusive right to use such portion of the common
1792 elements as may be provided by the documents declaration,
1793 including the right to transfer such right to other units or
1794 unit owners to the extent authorized by the documents
1795 declaration as originally recorded, or amendments to the
1796 documents declaration adopted pursuant to the provisions
1797 contained therein. Amendments to documents declarations of
1798 condominium providing for the transfer of use rights with
1799 respect to limited common elements are not amendments that
1800 materially modify unit appurtenances as described in s.
1801 718.110(4). However, in order to be effective, the transfer of
1802 use rights with respect to limited common elements must be
1803 effectuated in conformity with the procedures set forth in the
1804 documents declaration as originally recorded or as amended under
1805 the procedures provided therein. This section is intended to
1806 clarify existing law and applies to associations existing on the
1807 effective date of this act.
1808 (c) An exclusive easement for the use of the airspace
1809 occupied by the unit as it exists at any particular time and as
1810 the unit may lawfully be altered or reconstructed from time to
1811 time. An easement in airspace which is vacated shall be
1812 terminated automatically.
1813 (d) Membership in the association designated in the
1814 documents declaration, with the full voting rights appertaining
1815 thereto.
1816 (e) Other appurtenances as may be provided in the documents
1817 that may not be burdened by regulations or restrictions that are
1818 the purview of other authority declaration.
1819 (3)(a) Expiration of a motor vehicle tag or failure to
1820 display a motor vehicle tag or parking permit is not sufficient
1821 grounds for enforcement action if it is the unit owner’s only
1822 vehicle and the vehicle is parked in the spot assigned to the
1823 unit.
1824 (b) An association may not prohibit or restrict the parking
1825 of a noncommercial motor vehicle owned by a unit owner or the
1826 owner’s guest, licensee, or invitee.
1827 (4)(3) A unit owner is entitled to the exclusive possession
1828 of his or her unit, subject to the provisions of s. 718.111(5).
1829 He or she is entitled to use the common elements in accordance
1830 with the purposes for which they are intended, but no use may
1831 hinder or encroach upon the lawful rights of other unit owners.
1832 (5)(4) When a unit is leased, a tenant shall have all use
1833 rights in the association property and those common elements
1834 otherwise readily available for use generally by unit owners and
1835 the unit owner shall not have such rights except as a guest,
1836 unless such rights are waived in writing by the tenant. Nothing
1837 in this subsection shall interfere with the access rights of the
1838 unit owner as a landlord pursuant to chapter 83. The association
1839 shall have the right to adopt rules to prohibit dual usage by a
1840 unit owner and a tenant of association property and common
1841 elements otherwise readily available for use generally by unit
1842 owners.
1843 (6)(5) A local government may not adopt an ordinance or
1844 regulation that prohibits common interest community condominium
1845 unit owners or their guests, licensees, or invitees from
1846 pedestrian access to a public beach contiguous to a common
1847 interest community condominium property, except where necessary
1848 to protect public health, safety, or natural resources. This
1849 subsection does not prohibit a governmental entity from enacting
1850 regulations governing activities taking place on the beach.
1851 Section 52. Section 718.107, Florida Statutes, is amended
1852 to read:
1853 718.107 Restraint upon separation and partition of common
1854 elements.—
1855 (1) The undivided share in the common elements which is
1856 appurtenant to a unit shall not be separated from it and shall
1857 pass with the title to the unit, whether or not separately
1858 described.
1859 (2) The share in the common elements appurtenant to a unit
1860 cannot be conveyed or encumbered except together with the unit.
1861 (3) The shares in the common elements appurtenant to units
1862 are undivided, and no action for partition of the common
1863 elements shall lie.
1864 Section 53. Section 718.108, Florida Statutes, is amended
1865 to read:
1866 718.108 Common elements.—
1867 (1) “Common elements” includes within its meaning the
1868 following:
1869 (a) The common interest community condominium property
1870 which is not included within the units.
1871 (b) Easements through units for conduits, ducts, plumbing,
1872 wiring, and other facilities for the furnishing of utility
1873 services to units and the common elements.
1874 (c) An easement of support in every portion of a unit that
1875 which contributes to the support of a building.
1876 (d) The property and installations required for the
1877 furnishing of utilities and other services to more than one unit
1878 or to the common elements.
1879 (2) The documents declaration may designate other parts of
1880 the common interest community condominium property as common
1881 elements.
1882 Section 54. Section 718.1085, Florida Statutes, is amended
1883 to read:
1884 718.1085 Certain regulations not to be retroactively
1885 applied.—Notwithstanding the provisions of chapter 633 or of any
1886 other code, statute, ordinance, administrative rule, or
1887 regulation, or any interpretation thereof, an association,
1888 common interest community condominium, or unit owner is not
1889 obligated to retrofit the common elements or units of a
1890 residential common interest community condominium that meets the
1891 definition of “housing for older persons” in s. 760.29(4)(b)3.
1892 to comply with requirements relating to handrails and guardrails
1893 if the unit owners have voted to forego such retrofitting by the
1894 affirmative vote of two-thirds of all voting interests in the
1895 affected common interest community condominium. However, a
1896 common interest community condominium association may not vote
1897 to forego the retrofitting in common areas in a high-rise
1898 building. For the purposes of this section, the term “high-rise
1899 building” means a building that is greater than 75 feet in
1900 height where the building height is measured from the lowest
1901 level of fire department access to the floor of the highest
1902 occupiable level. For the purposes of this section, the term
1903 “common areas” means stairwells and exposed, outdoor walkways
1904 and corridors. In no event shall the local authority having
1905 jurisdiction require retrofitting of common areas with handrails
1906 and guardrails before the end of 2014.
1907 (1) A vote to forego retrofitting may not be obtained by
1908 general proxy or limited proxy, but shall be obtained by a vote
1909 personally cast at a duly called membership meeting, or by
1910 execution of a written consent by the member, and shall be
1911 effective upon the recording of a certificate attesting to such
1912 vote in the public records of the county where the common
1913 interest community condominium is located. The association shall
1914 provide each unit owner written notice of the vote to forego
1915 retrofitting of the required handrails or guardrails, or both,
1916 in at least 16-point bold type, by certified mail, within 20
1917 days after the association’s vote. After such notice is provided
1918 to each owner, a copy of such notice shall be provided by the
1919 current owner to a new owner prior to closing and shall be
1920 provided by a unit owner to a renter prior to signing a lease.
1921 (2) As part of the information collected annually from
1922 common interest communities condominiums, the division shall
1923 require common interest community condominium associations to
1924 report the membership vote and recording of a certificate under
1925 this subsection and, if retrofitting has been undertaken, the
1926 per-unit cost of such work. The division shall annually report
1927 to the Division of State Fire Marshal of the Department of
1928 Financial Services the number of common interest communities
1929 condominiums that have elected to forego retrofitting.
1930 Section 55. Section 718.109, Florida Statutes, is amended
1931 to read:
1932 718.109 Legal description of common interest community
1933 condominium parcels.—Following the recording of the documents by
1934 which a common interest community is created declaration, a
1935 description of a common interest community condominium parcel by
1936 the number or other designation by which the unit is identified
1937 in the declaration, together with the recording data identifying
1938 the documents declaration, shall be a sufficient legal
1939 description for all purposes. The description includes all
1940 appurtenances to the unit concerned, whether or not separately
1941 described, including, but not limited to, the undivided share in
1942 the common elements appurtenant thereto.
1943 Section 56. Section 718.110, Florida Statutes, is amended
1944 to read:
1945 718.110 Amendment of documents declaration; correction of
1946 error or omission in documents declaration by circuit court.—
1947 (1)(a) The documents If the declaration fails to provide a
1948 method of amendment, the declaration may be amended as to all
1949 matters except those described in subsection (4) or subsection
1950 (8) if the amendment is approved by the owners of a majority of
1951 the units present and voting at a duly called meeting of the
1952 common interest community not less than two-thirds of the units.
1953 Except as to those matters described in subsection (4) or
1954 subsection (8), no declaration recorded after April 1, 1992,
1955 shall require that amendments be approved by more than four
1956 fifths of the voting interests.
1957 (a)(b) No provision of the documents declaration shall be
1958 revised or amended by reference to its title or number only.
1959 Proposals to amend existing provisions of the documents
1960 declaration shall contain the full text of the provision to be
1961 amended; new words shall be inserted in the text and underlined;
1962 and words to be deleted shall be struck lined through with
1963 hyphens. However, if the proposed change is so extensive that
1964 this procedure would hinder, rather than assist, the
1965 understanding of the proposed amendment, it is not necessary to
1966 use underlining and hyphens as indicators of words added or
1967 deleted, but, instead, a notation must be inserted immediately
1968 preceding the proposed amendment in substantially the following
1969 language: “Substantial rewording of documents declaration. See
1970 provision .... for present text.”
1971 (b)(c) Nonmaterial errors or omissions in the amendment
1972 process will not invalidate an otherwise properly promulgated
1973 amendment.
1974 (2) An amendment, other than amendments made by the
1975 developer pursuant to ss. 718.104, 718.403, and 718.504(6), (7),
1976 and (9) without a vote of the unit owners and any rights the
1977 developer may have in the documents declaration to amend without
1978 consent of the unit owners which shall be limited to matters
1979 other than those under subsections (4) and (8), shall be
1980 recorded and evidenced by a certificate of the association which
1981 shall include the recording data identifying the recorded
1982 document declaration and shall be executed in the form required
1983 for the execution of a deed. An amendment by the developer must
1984 be evidenced in writing, but a certificate of the association is
1985 not required. The developer of a timeshare condominium may
1986 reserve specific rights in the declaration to amend the
1987 declaration without the consent of the unit owners.
1988 (3) An amendment of the documents a declaration is
1989 effective when properly recorded in the public records of the
1990 county where the documents are declaration is recorded.
1991 (4) Unless otherwise provided in the documents declaration
1992 as originally recorded, no amendment may change the
1993 configuration or size of any unit in any material fashion,
1994 materially alter or modify the appurtenances to the unit, or
1995 change the proportion or percentage by which the unit owner
1996 shares the common expenses of the common interest community
1997 condominium and owns the common surplus of the common interest
1998 community condominium unless the record owner of the unit and
1999 all record owners of liens on the unit join in the execution of
2000 the amendment and unless all the record owners of all other
2001 units in the same common interest community condominium approve
2002 the amendment. The acquisition of property by the association
2003 and material alterations or substantial additions to such
2004 property or the common elements by the association in accordance
2005 with s. 718.111(7) or s. 718.113, and amendments providing for
2006 the transfer of use rights in limited common elements pursuant
2007 to s. 718.106(2)(b) shall not be deemed to constitute a material
2008 alteration or modification of the appurtenances to the units. A
2009 declaration recorded after April 1, 1992, may not require the
2010 approval of less than a majority of total voting interests of
2011 the condominium for amendments under this subsection, unless
2012 otherwise required by a governmental entity.
2013 (5) If it appears that through a scrivener’s error a unit
2014 has not been designated as owning an appropriate undivided share
2015 of the common elements or does not bear an appropriate share of
2016 the common expenses or that all the common expenses or interest
2017 in the common surplus or all of the common elements in the
2018 common interest community condominium have not been distributed
2019 in the documents declaration, so that the sum total of the
2020 shares of common elements which have been distributed or the sum
2021 total of the shares of the common expenses or ownership of
2022 common surplus fails to equal 100 percent, or if it appears that
2023 more than 100 percent of common elements or common expenses or
2024 ownership of the common surplus have been distributed, the error
2025 may be corrected by filing an amendment to the declaration
2026 approved by the board of administration or a majority of the
2027 unit owners.
2028 (6) The common elements designated by the documents
2029 declaration may be enlarged by an amendment to the documents
2030 declaration. The amendment must describe the interest in the
2031 property and must submit the property to the terms of the
2032 documents declaration. The amendment must be approved and
2033 executed as provided in this section. The amendment divests the
2034 association of title to the land and vests title in the unit
2035 owners as described in part of the documents common elements,
2036 without naming them and without further conveyance, in the same
2037 proportion as the undivided share shares in the appurtenances
2038 common elements that are appurtenant to their the unit owned by
2039 them.
2040 (7) The declarations, bylaws, and common elements of two or
2041 more independent common interest communities condominiums of a
2042 single complex may be merged to form a single common interest
2043 community condominium, upon the approval of 75 percent of the
2044 voting interests of each common interest community such voting
2045 interest of each condominium as is required by the declaration
2046 for modifying the appurtenances to the units or changing the
2047 proportion or percentages by which the owners of the parcel
2048 share the common expenses and own the common surplus; upon the
2049 approval of all record owners of liens; and upon the recording
2050 of new or amended articles of incorporation, documents
2051 declarations, and bylaws.
2052 (8) Unless otherwise provided in the documents declaration
2053 as originally recorded, no amendment to the documents
2054 declaration may permit timeshare estates to be created in any
2055 unit of the common interest community condominium, unless the
2056 record owner of each unit of the common interest community
2057 condominium and the record owners of liens on each unit of the
2058 common interest community condominium join in the execution of
2059 the amendment.
2060 (9) If there is an omission or error in the documents a
2061 declaration, or in any other document required by law to
2062 establish the common interest community condominium, the
2063 association may correct the error or omission by an amendment to
2064 the documents declaration or to the other document required by
2065 law to establish the common interest community create a
2066 condominium in the manner provided in paragraph (1)(a) the
2067 declaration to amend the declaration or, if none is provided, by
2068 vote of a majority of the voting interests of the condominium.
2069 The amendment is effective when passed and approved and a
2070 certificate of amendment is executed and recorded as provided in
2071 subsections (2) and (3). This procedure for amendment cannot be
2072 used if such an amendment would materially or adversely affect
2073 property rights of unit owners, unless the affected unit owners
2074 consent in writing. This subsection does not restrict the powers
2075 of the association to otherwise amend the declaration, or other
2076 documentation, but authorizes a simple process of amendment
2077 requiring a lesser vote for the purpose of curing defects,
2078 errors, or omissions when the property rights of unit owners are
2079 not materially or adversely affected.
2080 (10) If there is an omission or error in the documents a
2081 declaration of condominium, or any other document required by
2082 law to establish the common interest community condominium, and
2083 the omission or error would affect the valid existence of the
2084 common interest community condominium, the circuit court may
2085 entertain a petition of one or more of the unit owners in the
2086 common interest community condominium, or of the association, to
2087 correct the error or omission, and the action may be a class
2088 action.
2089 (a) The court may require that one or more methods of
2090 correcting the error or omission be submitted to the unit owners
2091 to determine the most acceptable correction. All unit owners and
2092 the common interest community, the association, and the
2093 mortgagees of a first mortgage of record must be joined as
2094 parties to the action. Service of process on unit owners may be
2095 by hand delivery, certified mail with return receipt requested,
2096 electronic notice, or publication., but The plaintiff shall
2097 certify, under oath, that must furnish every unit owner received
2098 not personally served with process with a copy of the petition
2099 and final decree of the court by hand delivery, certified mail
2100 with, return receipt requested, electronic notice, or
2101 publication, at the unit owner’s last known residence address.
2102 (b) If an action to determine whether the documents
2103 declaration or any other common interest community another
2104 condominium document complies with the mandatory requirements
2105 for the formation of a common interest community condominium is
2106 not brought within 3 years after of the recording of the
2107 documents, the documents certificate of a surveyor and mapper
2108 pursuant to s. 718.104(4)(e) or the recording of an instrument
2109 that transfers title to a unit in the condominium which is not
2110 accompanied by a recorded assignment of developer rights in
2111 favor of the grantee of such unit, whichever occurs first, the
2112 declaration and any other common interest community document
2113 under this chapter documents will effectively create a common
2114 interest community condominium, as of the date the documents
2115 were declaration was recorded, regardless of whether the
2116 documents substantially comply with the mandatory requirements
2117 of law.
2118 (c) However, both before and after the expiration of this
2119 3-year period, the circuit court has jurisdiction to entertain a
2120 petition permitted under this subsection for the correction of
2121 the documentation, and other methods of amendment may be
2122 utilized to correct the errors or omissions at any time.
2123 (11) The Legislature finds that the procurement of
2124 mortgagee consent to amendments that do not affect the rights or
2125 interests of mortgagees is an unreasonable and substantial
2126 logistical and financial burden on the common interest community
2127 association unit owners and that there is a compelling state
2128 interest in enabling the association members of a condominium
2129 association to approve amendments to the condominium documents
2130 through legal means. Accordingly, and notwithstanding any
2131 provision to the contrary contained in this section:
2132 (a) As to any mortgage recorded on or after October 1,
2133 2007, Any provision in the documents declaration, articles of
2134 incorporation, or bylaws, or general law which that requires the
2135 consent or joinder of some or all mortgagees of units or any
2136 other portion of the condominium property to or in amendments to
2137 the documents declaration, articles of incorporation, or bylaws,
2138 or general law, or for any other matter, including termination
2139 pursuant to s. 718.117, is shall be enforceable only if the
2140 mortgagee and any subsequent designee or mortgagee provides
2141 written notice to the association members of its status as a
2142 mortgage holder, by certified mail with return receipt
2143 requested, relating as to the following matters:
2144 1. Those matters described in subsections (4) and (8).
2145 2. Amendments to the documents declaration, articles of
2146 incorporation, or bylaws, or general law which that adversely
2147 affect the priority of the mortgagee’s lien or the mortgagee’s
2148 rights to foreclose its lien or that otherwise materially affect
2149 the rights and interests of the mortgagees. The amendments must
2150 be thoroughly described in the written notice.
2151 (b) As to mortgages recorded before October 1, 2007, Any
2152 existing provisions in the documents declaration, articles of
2153 incorporation, or bylaws, or general law requiring mortgagee
2154 consent shall be enforceable only if the mortgagee and any
2155 subsequent designee or mortgagee provides written notice as
2156 required in paragraph (a).
2157 (c) In securing consent or joinder, the association shall
2158 be entitled to rely upon the written notice provided in
2159 paragraph (a) public records to identify the holders of
2160 outstanding mortgages. The association may use the address
2161 provided in the original recorded mortgage document, unless
2162 there is a different address for the holder of the mortgage in a
2163 recorded assignment or modification of the mortgage, which
2164 recorded assignment or modification must reference the official
2165 records book and page on which the original mortgage was
2166 recorded. Once the association has identified the recorded
2167 mortgages of record, the association shall, in writing, request
2168 of each unit owner whose unit is encumbered by a mortgage of
2169 record any information the owner has in his or her possession
2170 regarding the name and address of the person to whom mortgage
2171 payments are currently being made. Notice shall be sent to such
2172 person if the address provided in the original recorded mortgage
2173 document is different from the name and address of the mortgagee
2174 or assignee of the mortgage as shown by the public record. The
2175 association shall be deemed to have complied with this
2176 requirement by making the written request of the unit owners
2177 required under this paragraph. Any notices required to be sent
2178 to the mortgagees under this subsection paragraph shall be sent
2179 to the address specified in the written notice provided in
2180 paragraph (a) all available addresses provided to the
2181 association.
2182 (d) Any notice to the mortgagees required under this
2183 subsection paragraph (c) may be sent by a method that
2184 establishes proof of delivery, and any mortgagee who fails to
2185 respond within 60 days after the date of mailing shall be deemed
2186 to have consented to the action amendment.
2187 (e) For those amendments requiring mortgagee consent on or
2188 after October 1, 2007, In the event mortgagee consent is
2189 provided other than by properly recorded joinder, such consent
2190 shall be evidenced by affidavit of the association recorded in
2191 the public records of the county where the common interest
2192 community declaration is located recorded. Any amendment adopted
2193 without the required consent of a mortgagee shall be voidable
2194 only by a mortgagee who was entitled to written notice pursuant
2195 to paragraph (a) and an opportunity to consent. An action to
2196 void an amendment or action shall be subject to the statute of
2197 limitations beginning 2 5 years after the date of discovery as
2198 to the amendments described in subparagraphs (a)1. and 2. and 5
2199 years after the date of recordation of the certificate of
2200 amendment for all other amendments. This provision shall apply
2201 to all mortgages, regardless of the date of recordation of the
2202 mortgage.
2203 (f) The documents of a common interest community shall be
2204 deemed amended to correspond with amendments to applicable
2205 statutes and may be recorded as amendments with approval of the
2206 board of directors of the common interest community.
2207 Notwithstanding the provisions of this section, any amendment or
2208 amendments to conform a declaration of condominium to the
2209 insurance coverage provisions in s. 718.111(11) may be made as
2210 provided in that section.
2211 (12)(a) With respect to an existing multi-common interest
2212 community multicondominium association, any amendment to change
2213 the fractional or percentage share of liability for the common
2214 expenses of the association and ownership of the common surplus
2215 of the association must be approved by at least a majority of
2216 the total voting interests of each common interest community
2217 condominium operated by the association unless the declarations
2218 of all condominiums operated by the association uniformly
2219 require approval by a greater percentage of the voting interests
2220 of each condominium.
2221 (b) Unless approval by a greater percentage of the voting
2222 interests of an existing multi-common interest community
2223 multicondominium association is expressly required in the
2224 documents declaration of an existing common interest community
2225 condominium, the documents declaration may be amended upon
2226 approval of at least a majority of the total voting interests of
2227 each common interest community condominium operated by the
2228 multi-common interest community multicondominium association for
2229 the purpose of:
2230 1. Setting forth in the documents declaration the formula
2231 currently utilized, but not previously stated in the documents
2232 declaration, for determining the percentage or fractional shares
2233 of liability for the common expenses of the multi-common
2234 interest community multicondominium association and ownership of
2235 the common surplus of the multi-common interest community
2236 multicondominium association. The formula shall be based on an
2237 equal-per-unit, square-foot basis or an equal-per-unit basis.
2238 2. Providing for the creation or enlargement of a multi
2239 common interest community multicondominium association by the
2240 merger or consolidation of two or more associations and changing
2241 the name of the association, as appropriate.
2242 (13) The alienation of units shall not be restricted unless
2243 it is likely to threaten the security of the residents,
2244 association property, and the financial status of the
2245 association or the ability of the association to qualify for
2246 institutional mortgage financing.
2247 (14)(13) An amendment prohibiting unit owners from renting
2248 their units or altering the duration of the rental term or
2249 specifying or limiting the number of times unit owners are
2250 entitled to rent their units during a specified period applies
2251 only to unit owners who consent to the amendment and unit owners
2252 who acquire title to their units after the effective date of
2253 that amendment.
2254 (15)(14) Except for those portions of the common elements
2255 designed and intended to be used by all unit owners, a portion
2256 of the common elements serving only one unit or a group of units
2257 may be reclassified as a limited common element upon the vote
2258 required to amend the declaration as provided therein or as
2259 required under subsection (1) paragraph (1)(a), and shall not be
2260 considered an amendment pursuant to subsection (4). This is a
2261 clarification of existing law.
2262 Section 57. Section 718.111, Florida Statutes, is amended
2263 to read:
2264 718.111 The association.—
2265 (1) CORPORATE ENTITY.—
2266 (a) The operation of the common interest community
2267 condominium shall be by the association, which must be a Florida
2268 corporation for profit or a Florida corporation not for profit.
2269 Any common interest community that However, any association
2270 which was in existence on January 1, 1977, need not be
2271 incorporated when created must file for incorporation by January
2272 1, 2017. The owners of units shall be shareholders or members of
2273 the association. The officers and directors of the association
2274 have a fiduciary relationship to the unit owners. It is the
2275 intent of the Legislature that nothing in this paragraph shall
2276 be construed as providing for or removing a requirement of a
2277 fiduciary relationship between any manager employed by the
2278 association and the unit owners. An officer, director, or
2279 manager may not solicit, offer to accept, or accept any thing or
2280 service of value for which consideration has not been provided
2281 for his or her own benefit or that of his or her immediate
2282 family, from any person providing or proposing to provide goods
2283 or services to the association. Any such officer, director, or
2284 manager who knowingly so solicits, offers to accept, or accepts
2285 any thing or service of value is subject to a civil penalty
2286 pursuant to s. 718.501(1)(d). However, this paragraph does not
2287 prohibit an officer, director, or manager from accepting
2288 services or items received in connection with trade fairs or
2289 education programs. An association may operate more than one
2290 common interest community condominium.
2291 (b) A director of the association who is present at a
2292 meeting of its board at which action on any corporate matter is
2293 taken shall be presumed to have assented to the action taken
2294 unless he or she votes against such action or abstains for a
2295 stated conflict of interest from voting. A director of the
2296 association who abstains from voting on any action taken on any
2297 corporate matter shall be presumed to have taken no position
2298 with regard to the action. Directors may not vote by proxy or by
2299 secret ballot at board meetings, except that officers may be
2300 elected by secret ballot. A vote or abstention for each member
2301 present shall be recorded in the minutes and, if the vote is
2302 unanimous, the names of the members are not required to be
2303 recorded in the minutes.
2304 (c) A unit owner does not have any authority to act for the
2305 association by reason of being a unit owner.
2306 (d) As required by s. 617.0830, an officer, director, or
2307 agent shall discharge his or her duties in good faith, with the
2308 care an ordinarily prudent person in a like position would
2309 exercise under similar circumstances, and in a manner he or she
2310 reasonably believes to be in the best interests of the
2311 association. An officer, director, or agent shall,
2312 notwithstanding any indemnification provisions in the documents,
2313 be individually liable for monetary damages as provided in s.
2314 617.0834 if such officer, director, or agent breached or failed
2315 to perform his or her duties and the breach of, or failure to
2316 perform, his or her duties constitutes a violation of criminal
2317 law as provided in s. 617.0834; constitutes a transaction from
2318 which the officer or director derived an improper personal
2319 benefit, either directly or indirectly; or constitutes
2320 recklessness or an act or omission that was in bad faith, with
2321 malicious purpose, or in a manner exhibiting wanton and willful
2322 disregard of human rights, safety, or property.
2323 (e) Circumstances that create a conflict of interest which
2324 require a director to abstain include, but are not limited to:
2325 1. Outside interests, including:
2326 a. A contract or transaction between the association and a
2327 director or the director’s co-owner or family member.
2328 b. A contract or transaction involving the association,
2329 including the approval of a transaction between a unit owner and
2330 a third party, in which a director will benefit financially by
2331 the receipt of a payment in connection with services rendered in
2332 connection with the transaction or of which such person is a
2333 director, an officer, an agent, a partner, an associate, a
2334 trustee, a personal representative, a receiver, a guardian, a
2335 custodian, a conservator, or other legal representative.
2336 2. Outside activities, including:
2337 a. A director competing with the association or a party
2338 rendering services in a transaction to a unit owner.
2339 b. A director having a material financial interest in, or
2340 serving as a director, officer, employee, agent, partner,
2341 associate, trustee, personal representative, receiver, guardian,
2342 custodian, conservator, or other legal representative of, or
2343 consultant to, an entity or individual that competes with the
2344 association in the provision of services or in any other
2345 contract or transaction with a third party.
2346
2347 Ownership of publicly traded stock in a corporation does not
2348 create a conflict of interest if the ownership of the stock is
2349 disclosed.
2350 (f) The officers and directors of the association have a
2351 fiduciary duty and responsibility to the members. An officer, a
2352 director, a manager, an employee, or an agent of an association
2353 or of a management firm may not solicit, offer to accept, or
2354 accept any goods or services of value for which consideration
2355 has not been provided for his or her own benefit, or that of his
2356 or her immediate family, from any person providing or proposing
2357 to provide goods or services to the officer, director, manager,
2358 employee, or agent of the association. Any such person who
2359 knowingly solicits, offers to accept, or accepts any goods or
2360 services of value is subject to a civil penalty pursuant to s.
2361 718.501(1)(d) and a criminal penalty pursuant to s. 812.014.
2362 This paragraph does not prohibit any such person from accepting
2363 goods or services of minimal value received in connection with
2364 trade fairs or education programs.
2365 (2) POWERS AND DUTIES.—The powers and duties of the
2366 association include those set forth in this section and, except
2367 as expressly limited or restricted in this chapter, those set
2368 forth in the declaration and bylaws and chapters part I of
2369 chapter 607 and chapter 617, as applicable.
2370 (3) RESPONSIBILITY POWER TO MANAGE COMMON INTEREST
2371 COMMUNITY CONDOMINIUM PROPERTY AND TO CONTRACT, SUE, AND BE
2372 SUED.—The association may contract, sue, or be sued with respect
2373 to the exercise or nonexercise of its responsibilities powers.
2374 For these purposes, the powers of the association include, but
2375 are not limited to, the maintenance, management, and operation
2376 of the common interest community condominium property and
2377 affairs.
2378 (a) After control of the association is obtained by unit
2379 owners other than the developer, the association may institute,
2380 maintain, settle, or appeal actions or hearings in its name on
2381 behalf of all unit owners concerning matters of common interest
2382 to most or all unit owners, including, but not limited to, the
2383 common elements; the roof and structural components of a
2384 building or other improvements; mechanical, electrical, and
2385 plumbing elements serving an improvement or a building;
2386 representations of the developer pertaining to any existing or
2387 proposed commonly used facilities; and protesting ad valorem
2388 taxes on commonly used facilities and on units; and the
2389 developer’s unreasonable representations of common expenses,;
2390 and may defend actions in eminent domain or bring inverse
2391 condemnation actions.
2392 (b) If the association has the authority to maintain a
2393 class action, the association may be joined in an action as
2394 representative of that class with reference to litigation and
2395 disputes involving the matters for which the association could
2396 bring a class action. Nothing herein limits any statutory or
2397 common-law right of any individual unit owner or class of unit
2398 owners to bring any action without participation by the
2399 association which may otherwise be available.
2400 (4) ASSESSMENTS; MANAGEMENT OF COMMON ELEMENTS.—The
2401 association must has the power to make and collect assessments
2402 and to lease, maintain, repair, and replace the common elements
2403 or association property; however, the association may not charge
2404 a use fee against a unit owner for the use of common elements or
2405 association property unless otherwise provided for in the
2406 documents declaration of condominium or by a majority vote of
2407 the association or unless the charges relate to expenses
2408 incurred because of by an owner having temporary exclusive use
2409 of the common elements or association property.
2410 (5) RIGHT OF ACCESS TO UNITS.—
2411 (a) The association has the irrevocable right of access to
2412 each unit during reasonable hours, when necessary for the
2413 maintenance, repair, inspection of safety systems, or
2414 replacement of any common elements or of any portion of a unit
2415 to be maintained by the association pursuant to the documents
2416 declaration or as necessary to prevent damage to the common
2417 elements or to verify the well-being of the resident a unit.
2418 (b)1. In addition to the association’s right of access in
2419 paragraph (a) and regardless of whether authority is provided in
2420 the declaration or other recorded common interest community
2421 condominium documents, an association, at the sole discretion of
2422 the board, may enter an abandoned unit to inspect the unit and
2423 adjoining common elements; make repairs to the unit or to the
2424 common elements serving the unit, as needed; repair the unit if
2425 mold or deterioration is present; turn on the utilities for the
2426 unit; or otherwise maintain, preserve, or protect the unit and
2427 adjoining common elements. For purposes of this paragraph, a
2428 unit is presumed to be abandoned if:
2429 a. The unit is the subject of a foreclosure action and no
2430 tenant appears to have resided in the unit for at least 4
2431 continuous weeks without prior written notice to the
2432 association; or
2433 b. No tenant appears to have resided in the unit for 2
2434 consecutive months without prior written notice to the
2435 association, and the association is unable to contact the owner
2436 or determine the whereabouts of the owner after reasonable
2437 inquiry.
2438 2. Except in the case of an emergency, an association may
2439 not enter an abandoned unit until 2 days after notice of the
2440 association’s intent to enter the unit has been mailed,
2441 electronically transmitted, or hand delivered hand-delivered to
2442 the owner at the address of the owner as reflected in the
2443 records of the association. The notice may be given by
2444 electronic transmission to unit owners who previously consented
2445 to receive notice by electronic transmission.
2446 3. Any expense incurred by an association pursuant to this
2447 paragraph is chargeable to the unit owner and enforceable as an
2448 assessment pursuant to s. 718.116, and the association may use
2449 its lien authority provided by s. 718.116 to enforce collection
2450 of the expense.
2451 4. The association may petition a court of competent
2452 jurisdiction to appoint a receiver to lease out an abandoned
2453 unit for the benefit of the association to offset against the
2454 rental income the association’s costs and expenses of
2455 maintaining, preserving, and protecting the unit and the
2456 adjoining common elements, including the costs of the
2457 receivership and all unpaid assessments, interest,
2458 administrative late fees, costs, and reasonable attorney fees.
2459 (6) OPERATION OF COMMON INTEREST COMMUNITIES CONDOMINIUMS
2460 CREATED PRIOR TO 1977.—Notwithstanding any provision of this
2461 chapter, an association may operate two or more residential
2462 common interest communities condominiums in which the initial
2463 common interest community condominium declaration was recorded
2464 prior to January 1, 1977, and may continue to so operate such
2465 common interest communities condominiums as a single common
2466 interest community condominium for purposes of financial
2467 matters, including budgets, assessments, accounting,
2468 recordkeeping, and similar matters, if provision is made for
2469 such consolidated operation in the applicable declarations of
2470 each such common interest community condominium or in the
2471 bylaws. An association for such common interest communities
2472 condominiums may also provide for consolidated financial
2473 operation as described in this section either by amending its
2474 documents declaration pursuant to s. 718.110(1) 718.110(1)(a) or
2475 by amending its bylaws and having the amendment approved by not
2476 less than two-thirds of the total voting interests.
2477 Notwithstanding any provision in this chapter, common expenses
2478 for residential common interest communities condominiums in such
2479 a project being operated by a single association may be assessed
2480 against all unit owners in such project pursuant to the
2481 proportions or percentages established for the project therefor
2482 in the documents declarations as initially recorded or in the
2483 bylaws as initially adopted, subject, however, to the
2484 limitations of ss. 718.116 and 718.302.
2485 (7) TITLE TO PROPERTY.—
2486 (a) The association has the power to acquire title to
2487 property or otherwise hold, convey, lease, and mortgage
2488 association property for the use and benefit of its members. The
2489 power to acquire personal property shall be exercised by the
2490 board of administration. Except as otherwise permitted in
2491 subsections (8) and (9) and in s. 718.114, an no association may
2492 not acquire, convey, or lease, or mortgage association real
2493 property except in the manner provided in the documents
2494 declaration, and if the documents do declaration does not
2495 specify the procedure, then approval of 75 percent of the total
2496 voting interests shall be required.
2497 (b) Subject to the provisions of s. 718.112(2)(n)
2498 718.112(2)(m), the association, through its board, may has the
2499 limited power to convey a portion of the common elements to a
2500 condemning authority for the purposes of providing utility
2501 easements, right-of-way expansion, or other public purposes,
2502 whether negotiated or as a result of eminent domain proceedings.
2503 (8) PURCHASE OF LEASES.—The association may has the power
2504 to purchase any land or recreation lease, subject to the same
2505 manner of approval as in s. 718.114 for the acquisition of
2506 leaseholds.
2507 (9) PURCHASE OF UNITS.—The association may has the power,
2508 unless prohibited by the declaration, articles of incorporation,
2509 or bylaws of the association, to purchase units in the common
2510 interest community condominium and to acquire and hold, lease,
2511 mortgage, and convey the units them. There shall be no
2512 limitation on the association’s right to purchase a unit at a
2513 foreclosure sale resulting from the association’s foreclosure of
2514 its lien for unpaid assessments, or to take title by deed in
2515 lieu of foreclosure.
2516 (10) EASEMENTS.—Unless prohibited by the declaration, the
2517 board of administration has the authority, without the joinder
2518 of any unit owner, to grant, modify, or move any easement if the
2519 easement constitutes part of or crosses the common elements or
2520 association property. This subsection does not authorize the
2521 board of administration to modify, move, or vacate any easement
2522 created in whole or in part for the use or benefit of anyone
2523 other than the unit owners, or crossing the property of anyone
2524 other than the unit owners, without the consent or approval of
2525 those other persons having the use or benefit of the easement,
2526 as required by law or by the instrument creating the easement.
2527 Nothing in this subsection affects the minimum requirements of
2528 s. 718.104(6)(r) 718.104(4)(n) or the powers enumerated in
2529 subsection (3).
2530 (11) INSURANCE.—In order to protect the safety, health, and
2531 welfare of the people of the State of Florida and to ensure
2532 consistency in the provision of insurance coverage to common
2533 interest communities condominiums and their unit owners, this
2534 subsection applies to every residential common interest
2535 community condominium in the state, regardless of the date of
2536 its declaration of common interest community condominium. It is
2537 the intent of the Legislature to encourage lower or stable
2538 insurance premiums for associations described in this
2539 subsection.
2540 (a) The association shall obtain and maintain adequate
2541 property insurance, regardless of any requirement in the
2542 declaration of condominium for coverage by the association for
2543 full insurable value, replacement cost, or similar coverage,
2544 must be based on the replacement cost of the property to be
2545 insured as determined by an independent insurance appraisal or
2546 update of a prior appraisal to protect the association,
2547 association property, common elements, and the common interest
2548 community property required to be insured by the association
2549 pursuant to paragraph (b). The full insurable value shall be
2550 independently determined at least every 36 months. When
2551 determining the adequate amount of property insurance coverage,
2552 the association may include reasonable deductibles as determined
2553 by the board. The replacement cost must be determined at least
2554 once every 36 months.
2555 1. An association or group of associations may provide
2556 adequate property insurance through a self-insurance fund that
2557 complies with the requirements of ss. 624.460-624.488.
2558 2. The association may also provide adequate property
2559 insurance coverage for a group of at least three communities
2560 created and operating under this chapter, chapter 719, chapter
2561 720, or chapter 721 by obtaining and maintaining for such
2562 communities insurance coverage sufficient to cover an amount
2563 equal to the probable maximum loss for the communities for a
2564 250-year windstorm event. Such probable maximum loss must be
2565 determined through the use of a competent model that has been
2566 accepted by the Florida Commission on Hurricane Loss Projection
2567 Methodology. A policy or program providing such coverage may not
2568 be issued or renewed after July 1, 2008, unless it has been
2569 reviewed and approved by the Office of Insurance Regulation. The
2570 review and approval must include approval of the policy and
2571 related forms pursuant to ss. 627.410 and 627.411, approval of
2572 the rates pursuant to s. 627.062, a determination that the loss
2573 model approved by the commission was accurately and
2574 appropriately applied to the insured structures to determine the
2575 250-year probable maximum loss, and a determination that
2576 complete and accurate disclosure of all material provisions is
2577 provided to common interest community condominium unit owners
2578 before execution of the agreement by a common interest community
2579 condominium association.
2580 3. When determining the adequate amount of property
2581 insurance coverage, the association may consider deductibles as
2582 determined by this subsection.
2583 (b)1. Every policy issued to protect an association
2584 building must provide that the term “building,” wherever used in
2585 the policy, shall include, but not be limited to, the entry
2586 doors, glass in windows and sliding glass doors exposed to the
2587 elements, fixtures, installations, or additions comprising that
2588 part of the building within the unfinished interior surfaces of
2589 the perimeter walls, floors, and ceilings of the individual
2590 units initially installed, or replacements thereof of like kind
2591 or quality, in accordance with the original plans and
2592 specifications, or as they existed at the time the unit was
2593 initially conveyed if the original plans and specifications are
2594 not available.
2595 2. The term “building” shall not include unit window
2596 treatments, wall coverings, ceiling coverings, floor coverings,
2597 electrical fixtures, appliances, air conditioner or heating
2598 equipment regardless of whether inside or outside the unit, and
2599 water heaters or built-in cabinets unless they are damaged by a
2600 covered peril under the association policy. With respect to the
2601 coverage under this subparagraph, the unit owners must be
2602 considered additional insureds under the policy.
2603 (c) Every insurance policy issued to an individual owner
2604 shall provide that coverage afforded by the policy is greater
2605 than the amount recoverable under any other policy covering the
2606 same property without rights of subrogation against the
2607 association.
2608 (d)(b) If an association is a developer-controlled
2609 association, the association shall exercise its best efforts to
2610 obtain and maintain insurance as described in paragraph (a).
2611 Failure to obtain and maintain adequate hazard property
2612 insurance during any period of developer control constitutes an
2613 individual a breach of fiduciary responsibility by the developer
2614 and developer-appointed members of the board of directors of the
2615 association, unless the members can show that despite such
2616 failure, they have made their best efforts to maintain the
2617 required coverage.
2618 (c) Policies may include deductibles as determined by the
2619 board.
2620 1. The deductibles must be consistent with industry
2621 standards and prevailing practice for communities of similar
2622 size and age, and having similar construction and facilities in
2623 the locale where the condominium property is situated.
2624 2. The deductibles may be based upon available funds,
2625 including reserve accounts, or predetermined assessment
2626 authority at the time the insurance is obtained.
2627 3. The board shall establish the amount of deductibles
2628 based upon the level of available funds and predetermined
2629 assessment authority at a meeting of the board in the manner set
2630 forth in s. 718.112(2)(e).
2631 (d) An association controlled by unit owners operating as a
2632 residential condominium shall use its best efforts to obtain and
2633 maintain adequate property insurance to protect the association,
2634 the association property, the common elements, and the
2635 condominium property that must be insured by the association
2636 pursuant to this subsection.
2637 (e) The documents declaration of condominium as originally
2638 recorded, or as amended pursuant to procedures provided therein,
2639 may provide that association condominium property consisting of
2640 freestanding buildings comprised of no more than one building in
2641 or on such unit need not be insured by the association if the
2642 declaration requires the unit owner to obtain adequate insurance
2643 for the association condominium property. An association may
2644 also obtain and maintain liability insurance for directors and
2645 officers, insurance for the benefit of association employees,
2646 and flood insurance for common elements and, association
2647 property, and units.
2648 (f) An individual unit owner’s property insurance policy
2649 must provide that coverage afforded by such policy is excess
2650 coverage that is greater than the amount recoverable under any
2651 other policy covering the same property. Such policies must
2652 include loss assessment coverage of at least $2,000 per
2653 occurrence and may not be offset by an assessment required for
2654 uninsured or underinsured losses. An insurance policy issued to
2655 an individual unit owner providing such coverage shall not
2656 provide rights of subrogation against the association operating
2657 the common interest community in which such individual’s unit is
2658 located.
2659 (f) Every property insurance policy issued or renewed on or
2660 after January 1, 2009, for the purpose of protecting the
2661 condominium must provide primary coverage for:
2662 1. All portions of the condominium property as originally
2663 installed or replacement of like kind and quality, in accordance
2664 with the original plans and specifications.
2665 2. All alterations or additions made to the condominium
2666 property or association property pursuant to s. 718.113(2).
2667 3. The coverage must exclude all personal property within
2668 the unit or limited common elements, and floor, wall, and
2669 ceiling coverings, electrical fixtures, appliances, water
2670 heaters, water filters, built-in cabinets and countertops, and
2671 window treatments, including curtains, drapes, blinds, hardware,
2672 and similar window treatment components, or replacements of any
2673 of the foregoing which are located within the boundaries of the
2674 unit and serve only such unit. Such property and any insurance
2675 thereupon is the responsibility of the unit owner.
2676 (g) A condominium unit owner policy must conform to the
2677 requirements of s. 627.714.
2678 1. All reconstruction work after a property loss must be
2679 undertaken by the association except as otherwise authorized in
2680 this section. A unit owner may undertake reconstruction work on
2681 portions of the unit with the prior written consent of the board
2682 of administration. However, such work may be conditioned upon
2683 the approval of the repair methods, the qualifications of the
2684 proposed contractor, or the contract that is used for that
2685 purpose. A unit owner must obtain all required governmental
2686 permits and approvals before commencing reconstruction.
2687 2. Unit owners are responsible for the cost of
2688 reconstruction of any portions of the condominium property for
2689 which the unit owner is required to carry property insurance, or
2690 for which the unit owner is responsible under paragraph (j), and
2691 the cost of any such reconstruction work undertaken by the
2692 association is chargeable to the unit owner and enforceable as
2693 an assessment and may be collected in the manner provided for
2694 the collection of assessments pursuant to s. 718.116.
2695 3. A multicondominium association may elect, by a majority
2696 vote of the collective members of the condominiums operated by
2697 the association, to operate the condominiums as a single
2698 condominium for purposes of insurance matters, including, but
2699 not limited to, the purchase of the property insurance required
2700 by this section and the apportionment of deductibles and damages
2701 in excess of coverage. The election to aggregate the treatment
2702 of insurance premiums, deductibles, and excess damages
2703 constitutes an amendment to the declaration of all condominiums
2704 operated by the association, and the costs of insurance must be
2705 stated in the association budget. The amendments must be
2706 recorded as required by s. 718.110.
2707 (g)(h) The association shall maintain insurance or fidelity
2708 insurance bonding of all persons and firms who control or
2709 disburse funds of the association. The insurance policy or
2710 fidelity bond must cover the maximum funds that will be in the
2711 custody of the association or its management agent at any one
2712 time. As used in this paragraph, the term “persons who control
2713 or disburse funds of the association” includes, but is not
2714 limited to, those individuals authorized to sign checks on
2715 behalf of the association, and the president, secretary, and
2716 treasurer of the association. The association shall bear the
2717 cost of any such insurance bonding.
2718 (h)(i) The association may amend the common interest
2719 community documents to conform the documents to the coverage
2720 requirements in this subsection declaration of condominium
2721 without regard to any requirement for approval by mortgagees of
2722 amendments affecting insurance requirements for the purpose of
2723 conforming the declaration of condominium to the coverage
2724 requirements of this subsection.
2725 (i)(j) Any portion of the common interest community
2726 condominium property required to that must be insured by the
2727 association against property loss pursuant to paragraph (f)
2728 which is damaged by covered peril an insurable event shall be
2729 reconstructed, repaired, or replaced as necessary by the
2730 association as a common expense. In the absence of an insurable
2731 event, the association or the unit owners shall be responsible
2732 for the reconstruction, repair, or replacement as determined by
2733 the maintenance provisions of the declaration or bylaws. All
2734 property insurance deductibles and other damages in excess of
2735 property insurance coverage under the property insurance
2736 policies maintained by the association are a common expense of
2737 the association condominium, except that:
2738 1. A unit owner is responsible for the costs of repair or
2739 replacement of any portion of the common interest community
2740 condominium property not paid by insurance proceeds if such
2741 damage is caused by intentional conduct, negligence, or failure
2742 to comply with the terms of the declaration or the rules of the
2743 association by a unit owner, the members of his or her family,
2744 unit occupants, tenants, guests, or invitees, without compromise
2745 of the subrogation rights of the insurer.
2746 2. The provisions of subparagraph 1. regarding the
2747 financial responsibility of a unit owner for the costs of
2748 repairing or replacing other portions of the common interest
2749 community condominium property also apply to the costs of repair
2750 or replacement of personal property of other unit owners or the
2751 association, as well as other property, whether real or
2752 personal, which the unit owners are required to insure.
2753 3. To the extent the cost of repair or reconstruction for
2754 which the unit owner is responsible under this paragraph is
2755 reimbursed to the association by insurance proceeds, and the
2756 association has collected the cost of such repair or
2757 reconstruction from the unit owner, the association shall
2758 reimburse the unit owner without the waiver of any rights of
2759 subrogation.
2760 4. The association is not obligated to pay for
2761 reconstruction or repairs of property losses as a common expense
2762 if the property losses were known or should have been known to a
2763 unit owner and were not reported to the association until after
2764 the insurance claim of the association for that property was
2765 settled or resolved with finality, or denied because it was
2766 untimely filed.
2767 (k) An association may, upon the approval of a majority of
2768 the total voting interests in the association, opt out of the
2769 provisions of paragraph (j) for the allocation of repair or
2770 reconstruction expenses and allocate repair or reconstruction
2771 expenses in the manner provided in the declaration as originally
2772 recorded or as amended. Such vote may be approved by the voting
2773 interests of the association without regard to any mortgagee
2774 consent requirements.
2775 (l) In a multicondominium association that has not
2776 consolidated its financial operations under subsection (6), any
2777 condominium operated by the association may opt out of the
2778 provisions of paragraph (j) with the approval of a majority of
2779 the total voting interests in that condominium. Such vote may be
2780 approved by the voting interests without regard to any mortgagee
2781 consent requirements.
2782 (m) Any association or condominium voting to opt out of the
2783 guidelines for repair or reconstruction expenses as described in
2784 paragraph (j) must record a notice setting forth the date of the
2785 opt-out vote and the page of the official records book on which
2786 the declaration is recorded. The decision to opt out is
2787 effective upon the date of recording of the notice in the public
2788 records by the association. An association that has voted to opt
2789 out of paragraph (j) may reverse that decision by the same vote
2790 required in paragraphs (k) and (l), and notice thereof shall be
2791 recorded in the official records.
2792 (j)(n) The association is not obligated to pay for any
2793 reconstruction or repair expenses due to property loss to any
2794 additions or alterations improvements installed by a current or
2795 former owner of the unit or by the developer if they were the
2796 improvement benefits only the unit for which it was installed
2797 and is not part of the standard improvements installed by the
2798 developer on all units as part of original construction, whether
2799 or not such addition or alteration improvement is located within
2800 the unit. This paragraph does not relieve any party of its
2801 obligations regarding recovery due under any insurance
2802 implemented specifically for any such additions or alterations
2803 improvements.
2804 (o) The provisions of this subsection shall not apply to
2805 timeshare condominium associations. Insurance for timeshare
2806 condominium associations shall be maintained pursuant to s.
2807 721.165.
2808 (12) OFFICIAL RECORDS.—
2809 (a) From the inception of the association, the association
2810 shall maintain each of the following items, if applicable, which
2811 constitutes the official records of the association:
2812 1. A copy of the plans, permits, warranties, and other
2813 items provided by the developer pursuant to s. 718.301(4).
2814 2. A photocopy of the recorded documents declaration of
2815 condominium of each common interest community condominium
2816 operated by the association and each amendment to each document
2817 declaration.
2818 3. A photocopy of the recorded bylaws of the association
2819 and each amendment to the bylaws.
2820 4. A certified copy of the articles of incorporation of the
2821 association, or other documents creating the association, and
2822 each amendment thereto.
2823 5. A copy of the current rules of the association.
2824 6. A book or books that contain the minutes of all meetings
2825 of the association, the board of administration, and the unit
2826 owners, which minutes must be retained for at least 7 years.
2827 7. A current roster of all unit owners and their mailing
2828 addresses, unit identifications, voting certifications, and, if
2829 known, telephone numbers. The association shall also maintain
2830 the electronic mailing addresses and facsimile numbers of unit
2831 owners consenting to receive notice by electronic transmission.
2832 The electronic mailing addresses and facsimile numbers are not
2833 accessible to unit owners if consent to receive notice by
2834 electronic transmission is not provided in accordance with
2835 subparagraph (e)5. subparagraph (c)5. However, the association
2836 is not liable for an inadvertent disclosure of the electronic
2837 mail address or facsimile number for receiving electronic
2838 transmission of notices.
2839 8. All current insurance policies of the association and
2840 common interest communities condominiums operated by the
2841 association.
2842 9. A current copy of any management agreement, lease, or
2843 other contract to which the association is a party or under
2844 which the association or the unit owners have an obligation or
2845 responsibility.
2846 10. Bills of sale or transfer for all property owned by the
2847 association.
2848 11. Accounting records for the association and separate
2849 accounting records for each common interest community
2850 condominium that the association operates. All accounting
2851 records must be maintained for at least 7 years. Any person who
2852 knowingly or intentionally defaces or destroys such records, or
2853 who knowingly or intentionally fails to create or maintain such
2854 records, with the intent of causing harm to the association or
2855 one or more of its members, is personally subject to a civil
2856 penalty pursuant to s. 718.501(1)(d). The accounting records
2857 must include, but are not limited to:
2858 a. Accurate, itemized, and detailed records of all receipts
2859 and expenditures.
2860 b. A current account and a monthly, bimonthly, or quarterly
2861 statement of the account for each unit designating the name of
2862 the unit owner, the due date and amount of each assessment, the
2863 amount paid on the account, and the balance due.
2864 c. All audits, reviews, accounting statements, and
2865 financial reports of the association or common interest
2866 community condominium.
2867 d. All contracts for work to be performed. Bids for work to
2868 be performed are also considered official records and must be
2869 maintained by the association.
2870 12. Ballots, sign-in sheets, voting proxies, and all other
2871 papers relating to voting by unit owners, which must be
2872 maintained for 1 year from the date of the election, vote, or
2873 meeting to which the document relates, notwithstanding paragraph
2874 (b).
2875 13. All rental records if the association is acting as
2876 agent for the rental of common interest community condominium
2877 units.
2878 14. A copy of the current question and answer sheet as
2879 described in s. 718.504.
2880 15. All other written records of the association not
2881 specifically included in the foregoing which are related to the
2882 operation of the association.
2883 16. A copy of the inspection report as described in s.
2884 718.301(4)(p).
2885 (b) The official records of the association must be
2886 maintained within the state for at least 7 years. The records of
2887 the association shall be made available to a unit owner within
2888 45 miles of the common interest community condominium property
2889 or within the county in which the common interest community
2890 condominium property is located within 5 working days after
2891 receipt of a written request by the board or its designee.
2892 However, such distance requirement does not apply to an
2893 association governing a timeshare common interest community
2894 condominium. This paragraph may be complied with by having a
2895 copy of the official records of the association available for
2896 inspection or copying on the common interest community
2897 condominium property or association property, or the association
2898 may offer the option of making the records available to a unit
2899 owner electronically via the Internet or by allowing the records
2900 to be viewed in electronic format on a computer screen and
2901 printed upon request.
2902 (c) The association is not responsible for the use or
2903 misuse of the information provided to an association member or
2904 his or her authorized representative pursuant to the compliance
2905 requirements of this chapter unless the association has an
2906 affirmative duty not to disclose such information pursuant to
2907 this chapter.
2908 (d)(c) The official records of the association are open to
2909 inspection by any association member or the authorized
2910 representative of such member at all reasonable times. The right
2911 to inspect the records includes the right to make or obtain
2912 copies, at the reasonable expense, if any, of the member. The
2913 division shall establish association may adopt reasonable rules
2914 that do not restrict access to the records regarding the
2915 frequency, time, location, notice, and manner of record
2916 inspections and copying.
2917 1. The failure of an association to provide the records
2918 within 10 working days after receipt of a written request
2919 creates a rebuttable presumption that the association willfully
2920 failed to comply with this paragraph. A unit owner who is denied
2921 access to official records is entitled to the actual damages or
2922 minimum damages for the association’s willful failure to comply.
2923 Minimum damages are $100 $50 per calendar day for up to 10 days,
2924 beginning on the 6th 11th working day after receipt of the
2925 written request. Damages may not be awarded if the documents are
2926 available in the official records of the county in which the
2927 association is located.
2928 2. The failure to permit inspection entitles any person
2929 prevailing in an enforcement action to recover reasonable
2930 attorney fees from the person in control of the records who,
2931 directly or indirectly, knowingly denied access to the records.
2932 3. Any person who knowingly or intentionally defaces or
2933 destroys accounting records that are required by this chapter to
2934 be maintained during the period that for which such records are
2935 required to be maintained, or who knowingly or intentionally
2936 fails to create or maintain accounting records that are required
2937 to be created or maintained, with the intent of causing harm to
2938 the association or one or more of its members, is personally
2939 subject to a civil penalty pursuant to s. 718.501(1)(d).
2940 4. The association shall maintain an adequate number of
2941 copies of the documents declaration, articles of incorporation,
2942 bylaws, and rules, and all amendments to each of the foregoing,
2943 as well as the question and answer sheet as described in s.
2944 718.504, the inspection report provided for in s. 718.301(4)(p),
2945 and year-end financial information required under this section,
2946 on the common interest community condominium property to ensure
2947 their availability to unit owners and prospective buyers within
2948 24 business hours after a request purchasers, and may charge 25
2949 cents per page its actual costs for preparing and furnishing
2950 these documents to those requesting the documents, unless the
2951 documents are electronically transmitted.
2952 5. An association shall allow a member or his or her
2953 authorized representative to use a portable device, including a
2954 smartphone, tablet, portable scanner, or any other technology
2955 capable of scanning or taking photographs, to make an electronic
2956 copy of the official records in lieu of the association’s
2957 providing the member or his or her authorized representative
2958 with a copy of such records. The association may not charge a
2959 member or his or her authorized representative for the use of a
2960 portable device.
2961 6. Any charge for personnel time to retrieve records must
2962 be reasonable and based on the compensation of the lowest paid
2963 employee of the records custodian or $20 per hour, whichever is
2964 less. Personnel costs may not be added to the cost of making
2965 photocopies as provided in this paragraph.
2966 7. This paragraph is not meant to obstruct, delay, hinder,
2967 or impede the access to and inspection of records but is meant
2968 to be used as a guide for controlled business processes.
2969 8. This paragraph does not restrict the association’s
2970 ability to provide more expeditious procedures that facilitate
2971 inspection and retrieval of information.
2972 9. This paragraph does not restrict or delay inspection of
2973 any records by a member of the board of directors or his or her
2974 designee who is granted access to the records when requested.
2975 (e) Notwithstanding this paragraph, the following records
2976 are not accessible to unit owners:
2977 1. Any record protected by the lawyer-client privilege as
2978 described in s. 90.502 and any record protected by the work
2979 product privilege, including a record prepared by an association
2980 attorney or prepared at the attorney’s express direction, which
2981 reflects a mental impression, conclusion, litigation strategy,
2982 or legal theory of the attorney or the association, and which
2983 was prepared exclusively for civil or criminal litigation or for
2984 adversarial administrative proceedings, or which was prepared in
2985 anticipation of such litigation or proceedings until the
2986 conclusion of the litigation or proceedings.
2987 2. Information obtained by an association in connection
2988 with the approval of the lease, sale, or other transfer of a
2989 unit.
2990 3. Personnel records of association or management company
2991 employees, including, but not limited to, disciplinary, payroll,
2992 health, and insurance records. For purposes of this
2993 subparagraph, the term “personnel records” does not include
2994 written employment agreements with an association employee or
2995 management company, or budgetary or financial records that
2996 indicate the compensation paid to an association employee.
2997 4. Medical records of unit owners.
2998 5. Social security numbers, driver license numbers, credit
2999 card numbers, e-mail addresses, telephone numbers, facsimile
3000 numbers, emergency contact information, addresses of a unit
3001 owner other than as provided to fulfill the association’s notice
3002 requirements, and other personal identifying information of any
3003 person, excluding the person’s name, unit designation, mailing
3004 address, property address, and any address, e-mail address, or
3005 facsimile number provided to the association to fulfill the
3006 association’s notice requirements. Notwithstanding the
3007 restrictions in this subparagraph, an association may print and
3008 distribute to parcel owners a directory containing the name,
3009 parcel address, and all telephone numbers of each parcel owner.
3010 However, an owner may exclude his or her telephone numbers from
3011 the directory by so requesting in writing to the association. An
3012 owner may consent in writing to the disclosure of other contact
3013 information described in this subparagraph. The association is
3014 not liable for the inadvertent disclosure of information that is
3015 protected under this subparagraph if the information is included
3016 in an official record of the association and is voluntarily
3017 provided by an owner and not requested by the association.
3018 6. Electronic security measures that are used by the
3019 association to safeguard data, including passwords.
3020 7. The software and operating system used by the
3021 association which allow the manipulation of data, even if the
3022 owner owns a copy of the same software used by the association.
3023 The data is part of the official records of the association.
3024 (f)(d) The association shall prepare a question and answer
3025 sheet as described in s. 718.504, and shall update it annually.
3026 (g)(e)1. The association or its authorized agent is not
3027 required to provide a prospective purchaser or lienholder with
3028 information about the common interest community condominium or
3029 the association other than information or documents required by
3030 this chapter to be made available or disclosed. The association
3031 or its authorized agent may charge a reasonable fee to the
3032 prospective purchaser, lienholder, or the current unit owner for
3033 providing good faith responses to requests for information by or
3034 on behalf of a prospective purchaser or lienholder, other than
3035 that required by law, if the fee does not exceed $150 plus the
3036 reasonable cost of photocopying and any attorney attorney’s fees
3037 incurred by the association in connection with the response.
3038 2. An association and its authorized agent are not liable
3039 for providing such information in good faith pursuant to a
3040 written request if the person providing the information includes
3041 a written statement in substantially the following form: “THE
3042 RESPONSES HEREIN ARE MADE IN GOOD FAITH AND TO THE BEST OF MY
3043 ABILITY AS TO THEIR ACCURACY.”
3044 (h)(f) An outgoing board or committee member must
3045 relinquish all official records and property of the association
3046 in his or her possession or under his or her control to the
3047 incoming board within 5 days after the election. The division
3048 shall impose a civil penalty as set forth in s. 718.501(1)(d)6.
3049 against an outgoing board or committee member who willfully and
3050 knowingly fails to relinquish such records and property.
3051 (13) FINANCIAL REPORTING.—Within 90 days after the end of
3052 the fiscal year, or annually on a date provided in the bylaws,
3053 The association shall prepare and complete, or contract for the
3054 preparation and completion of, a financial report for the
3055 preceding fiscal year. When a certified public accountant is
3056 retained to provide the financial report, the association shall
3057 provide the accountant with the required information within 45
3058 days after the end of the fiscal year. Within 10 21 days after
3059 the final financial report is completed by the association or
3060 received from the third party, but not later than 90 120 days
3061 after the end of the fiscal year or other date as provided in
3062 the bylaws, the association shall mail to each unit owner at the
3063 address last furnished to the association by the unit owner, or
3064 hand deliver to each unit owner, a copy of the financial report
3065 or a notice that a copy of the financial report will be
3066 electronically transmitted, mailed, or hand delivered to the
3067 unit owner, without charge, upon receipt of a written request
3068 from the unit owner.
3069 (a) The division shall adopt rules setting forth uniform
3070 accounting principles and standards to be used by all
3071 associations and addressing the financial reporting requirements
3072 for multi-common interest community multicondominium
3073 associations. The rules must include, but not be limited to,
3074 uniform reporting procedures standards for disclosure of the
3075 presenting a summary of association reserves, including
3076 information providing whether the reserves were and are
3077 currently being funded on a straight line or pooled basis at a
3078 level that provides equal contributions over the remaining life
3079 of the elements consistent with an equal contribution over the
3080 total useful life of the elements sufficient to prevent the need
3081 for a balloon payment or special assessment if continued at the
3082 same level and, if not, the amount necessary to bring the
3083 reserves up to the level necessary to avoid a special assessment
3084 or balloon payment a good faith estimate disclosing the annual
3085 amount of reserve funds that would be necessary for the
3086 association to fully fund reserves for each reserve item based
3087 on the straight-line accounting method. This disclosure is not
3088 applicable to reserves funded via the pooling method. In
3089 adopting such rules, the division shall consider the number of
3090 members and annual revenues of an association.
3091 (b) Within 30 days after the end of the fiscal year, the
3092 monthly report, including the year-to-date report, before the
3093 certified public accountant’s financial reports are made
3094 available shall be electronically transmitted, mailed, or hand
3095 delivered to unit owners without charge upon request.
3096 (c) The person preparing the financial reports is entitled
3097 to rely on the inspection report provided for in s.
3098 718.301(4)(p), if it is no more than 3 years old, to meet the
3099 fiscal and fiduciary standards of this chapter. In adopting
3100 rules consistent with this paragraph, the division shall
3101 consider the annual revenues of the association.
3102 (d) Financial statements reports shall be prepared as
3103 follows:
3104 1.(a) An association that meets the criteria of this
3105 paragraph shall prepare a complete set of financial statements
3106 in accordance with generally accepted accounting principles. The
3107 financial statements must be based upon the association’s total
3108 annual revenues, as follows:
3109 a.1. An association with total annual revenues of $150,000
3110 or more, but less than $150,000 $300,000, shall prepare compiled
3111 financial statements.
3112 b.2. An association with total annual revenues of at least
3113 $150,000 $300,000, but less than $500,000, shall prepare
3114 reviewed financial statements.
3115 c.3. An association with total annual revenues of $500,000
3116 or more shall prepare audited financial statements.
3117 (b)1. An association with total annual revenues of less
3118 than $150,000 shall prepare a report of cash receipts and
3119 expenditures.
3120 2. An association that operates fewer than 50 units,
3121 regardless of the association’s annual revenues, shall prepare a
3122 report of cash receipts and expenditures in lieu of financial
3123 statements required by paragraph (a).
3124 2.3. Financial statements A report of cash receipts and
3125 disbursements must disclose the amount of receipts by accounts
3126 and receipt classifications and the amount of expenses by
3127 accounts and expense classifications, including, but not limited
3128 to, the following, as applicable: costs for security,
3129 professional and management fees and expenses, taxes, costs for
3130 recreation facilities, expenses for refuse collection and
3131 utility services, expenses for lawn care, costs for building
3132 maintenance and repair, insurance costs, administration and
3133 salary expenses, and reserves accumulated and expended for
3134 capital expenditures, deferred maintenance, and any other
3135 category for which the association maintains reserves.
3136 (e)(c) The board An association may prepare, or cause to be
3137 prepared, a higher level of reporting, without a meeting of or
3138 approval by the unit owners:
3139 1. Compiled, reviewed, or audited financial statements, if
3140 the association is required to prepare a report of cash receipts
3141 and expenditures;
3142 2. Reviewed or audited financial statements, if the
3143 association is required to prepare compiled financial
3144 statements; or
3145 3. Audited financial statements if the association is
3146 required to prepare reviewed financial statements.
3147 (f)(d) If approved by a majority of the voting interests
3148 present at a properly called meeting of the association, an
3149 association may prepare, or cause to be prepared, a lower level
3150 of reporting, but not lower than the level of reporting required
3151 in paragraph (d).
3152 (g) If an association is under developer control, the
3153 developer must hire a certified public accountant firm to
3154 prepare the appropriate fiscal year report in accordance with
3155 generally accepted accounting principles. The certified public
3156 accountant firm must be licensed in the state and have passed
3157 its current peer review administered by the American Institute
3158 of Certified Public Accountants. The developer may not waive or
3159 modify its reporting requirements pursuant to this subsection.
3160 Any report prepared under this paragraph shall be paid for by
3161 the developer.:
3162 1. A report of cash receipts and expenditures in lieu of a
3163 compiled, reviewed, or audited financial statement;
3164 2. A report of cash receipts and expenditures or a compiled
3165 financial statement in lieu of a reviewed or audited financial
3166 statement; or
3167 3. A report of cash receipts and expenditures, a compiled
3168 financial statement, or a reviewed financial statement in lieu
3169 of an audited financial statement.
3170
3171 Such meeting and approval must occur before the end of the
3172 fiscal year and is effective only for the fiscal year in which
3173 the vote is taken, except that the approval may also be
3174 effective for the following fiscal year. If the developer has
3175 not turned over control of the association, all unit owners,
3176 including the developer, may vote on issues related to the
3177 preparation of the association’s financial reports, from the
3178 date of incorporation of the association through the end of the
3179 second fiscal year after the fiscal year in which the
3180 certificate of a surveyor and mapper is recorded pursuant to s.
3181 718.104(4)(e) or an instrument that transfers title to a unit in
3182 the condominium which is not accompanied by a recorded
3183 assignment of developer rights in favor of the grantee of such
3184 unit is recorded, whichever occurs first. Thereafter, all unit
3185 owners except the developer may vote on such issues until
3186 control is turned over to the association by the developer. Any
3187 audit or review prepared under this section shall be paid for by
3188 the developer if done before turnover of control of the
3189 association. An association may not waive the financial
3190 reporting requirements of this section for more than 3
3191 consecutive years.
3192 (14) COMMINGLING.—All funds collected by an association
3193 shall be maintained separately in the association’s name. For
3194 investment purposes only, reserve funds may be commingled with
3195 operating funds of the association. Commingled Operating and
3196 reserve funds shall be accounted for separately in, and a
3197 commingled account and shall not, at any time, be less than the
3198 amount identified as reserve funds. A community association
3199 manager or community association management firm required to be
3200 licensed under s. 468.432, or an agent, an employee, an officer,
3201 or a director of an association, may not commingle any
3202 association funds with his or her funds or with the funds of any
3203 other association.
3204 (a) All association funds held by a developer shall be
3205 maintained separately in the association’s name. Reserve and
3206 operating funds of the association may not be commingled before
3207 turnover of control of the association.
3208 (b) A developer in control of a common interest community
3209 association may not commingle any association funds with his or
3210 her funds or with the funds of any other common interest
3211 community association.
3212 (c) Association funds may not be used by a developer to
3213 defend a civil or criminal action, administrative proceeding, or
3214 arbitration proceeding filed against the developer or directors
3215 appointed to the association board by the developer, including
3216 any action or proceeding involving the operation of the
3217 developer-controlled association.
3218 (d) This subsection does not prohibit a multi-common
3219 interest community multicondominium association from commingling
3220 the operating funds of separate common interest communities
3221 condominiums or the reserve funds of separate common interest
3222 communities condominiums. Furthermore, for investment purposes
3223 only, a multi-common interest community multicondominium
3224 association may commingle the operating funds of separate common
3225 interest communities condominiums with the reserve funds of
3226 separate common interest communities condominiums.
3227 (e) A manager or business entity required to be licensed or
3228 registered under s. 468.432, or an agent, employee, officer, or
3229 director of an association, shall not commingle any association
3230 funds with his or her funds or with the funds of any other
3231 common interest community condominium association or the funds
3232 of a community association as defined in s. 468.431.
3233 (15) LIMITATION OF LIABILITY OF ASSOCIATION.—After turnover
3234 from the developer, notwithstanding the duty of the association
3235 to maintain and repair parts of the common interest community
3236 property, the association is not liable to unit owners for
3237 injury or damage, other than for the cost of maintenance and
3238 repair, caused by any latent defect of the property. The
3239 association is not liable for any injury or damage caused by
3240 such defects in design or workmanship or any other reason
3241 connected with any additions, alterations, or improvements made
3242 by or on behalf of any unit owner, regardless of whether the
3243 same shall have been approved by the association pursuant to the
3244 provisions of this subsection. The documents shall include, or
3245 if not included shall be deemed to include, the following:
3246
3247 NOTWITHSTANDING ANYTHING CONTAINED IN THIS DOCUMENT OR IN THE
3248 ARTICLES OF INCORPORATION, BYLAWS, ANY RULES OR REGULATIONS OF
3249 THE ASSOCIATION, OR ANY OTHER DOCUMENT GOVERNING OR BINDING THE
3250 ASSOCIATION (COLLECTIVELY, THE “ASSOCIATION DOCUMENTS”), THE
3251 ASSOCIATION IS NOT LIABLE OR RESPONSIBLE FOR, OR IN ANY MANNER
3252 DEEMED A GUARANTOR OR INSURER OF, THE HEALTH, SAFETY, AND/OR
3253 WELFARE OF ANY OWNER, OCCUPANT, OR USER OF ANY PORTION OF THE
3254 COMMON INTEREST COMMUNITY PROPERTY, INCLUDING, WITHOUT
3255 LIMITATION, RESIDENTS AND THEIR FAMILIES, GUESTS, INVITEES,
3256 AGENTS, SERVANTS, CONTRACTORS, OR SUBCONTRACTORS OR FOR ANY
3257 PROPERTY OF ANY SUCH PERSONS. WITHOUT LIMITING THE GENERALITY OF
3258 THE FOREGOING:
3259
3260 (A) IT IS THE EXPRESS INTENT OF THE ASSOCIATION DOCUMENTS THAT
3261 THE VARIOUS PROVISIONS OF THE DOCUMENTS THAT ARE ENFORCEABLE BY
3262 THE ASSOCIATION AND THAT GOVERN OR REGULATE THE USES OF THE
3263 COMMON INTEREST COMMUNITY PROPERTY HAVE BEEN WRITTEN, AND ARE TO
3264 BE INTERPRETED AND ENFORCED, FOR THE SOLE PURPOSE OF ENHANCING
3265 AND MAINTAINING THE ENJOYMENT OF THE COMMON INTEREST COMMUNITY
3266 PROPERTY AND THE VALUE OF THE PROPERTY.
3267
3268 (B) THE ASSOCIATION IS NOT EMPOWERED, AND HAS NOT BEEN CREATED,
3269 TO ACT AS AN ENTITY THAT ENFORCES OR ENSURES COMPLIANCE WITH THE
3270 LAWS OF THE UNITED STATES, THE STATE OF FLORIDA, ... COUNTY,
3271 AND/OR ANY OTHER JURISDICTION OR THE PREVENTION OF TORTIOUS
3272 ACTIVITIES.
3273
3274 (C) ANY PROVISIONS OF THE ASSOCIATION DOCUMENTS ESTABLISHING THE
3275 USES OF ASSESSMENTS WHICH RELATE TO HEALTH, SAFETY, AND/OR
3276 WELFARE OF ANY OWNER, OCCUPANT, OR USER OF ANY PORTION OF THE
3277 COMMON INTEREST COMMUNITY PROPERTY SHALL BE INTERPRETED AND
3278 APPLIED ONLY AS LIMITATIONS ON THE USES OF ASSESSMENT FUNDS AND
3279 NOT AS CREATING A DUTY OF THE ASSOCIATION TO PROTECT OR FURTHER
3280 THE HEALTH, SAFETY, AND/OR WELFARE OF ANY SUCH PERSON, EVEN IF
3281 ASSESSMENT FUNDS ARE USED FOR ANY SUCH REASON.
3282
3283 (D) A UNIT OWNER, BY VIRTUE OF HIS OR HER ACCEPTANCE OF TITLE TO
3284 HIS OR HER UNIT, AND ANY OTHER PERSON HAVING AN INTEREST IN OR
3285 LIEN UPON, OR MAKING ANY USE OF, ANY PORTION OF THE COMMON
3286 INTEREST COMMUNITY PROPERTY, BY VIRTUE OF ACCEPTING SUCH
3287 INTEREST OR MAKING SUCH USES, IS BOUND BY THIS PROVISION AND
3288 WAIVES ALL RIGHTS, CLAIMS, DEMANDS, AND CAUSES OF ACTION AGAINST
3289 THE ASSOCIATION ARISING FROM OR CONNECTED WITH ANY MATTER FOR
3290 WHICH THE LIABILITY OF THE ASSOCIATION HAS BEEN DISCLAIMED IN
3291 THIS PROVISION.
3292
3293 (E) AS USED IN THIS SECTION, THE TERM “ASSOCIATION” INCLUDES ALL
3294 OF THE ASSOCIATION’S DIRECTORS, OFFICERS, COMMITTEE AND BOARD
3295 MEMBERS, EMPLOYEES, AGENTS, CONTRACTORS, MANAGEMENT COMPANIES,
3296 SUBCONTRACTORS, SUCCESSORS, AND ASSIGNEES.
3297 Section 58. Section 718.112, Florida Statutes, is amended
3298 to read:
3299 718.112 Bylaws.—
3300 (1) GENERALLY.—
3301 (a) The operation of the association shall be governed by
3302 the articles of incorporation if the association is
3303 incorporated, and the bylaws of the association, which shall be
3304 included as exhibits to the recorded declaration. If one
3305 association operates more than one common interest community
3306 condominium, it shall not be necessary to rerecord the same
3307 articles of incorporation and bylaws as exhibits to each
3308 declaration after the first, provided that in each case where
3309 the articles and bylaws are not so recorded, the declaration
3310 expressly incorporates them by reference as exhibits and
3311 identifies the book and page of the public records where the
3312 first declaration to which they were attached is recorded.
3313 (b) No amendment to the articles of incorporation or bylaws
3314 is valid unless recorded with identification on the first page
3315 thereof of the book and page of the public records where the
3316 declaration of each common interest community condominium
3317 operated by the association is recorded.
3318 (2) REQUIRED PROVISIONS.—The bylaws shall provide for the
3319 following and, if they do not do so, shall be deemed to include
3320 the following:
3321 (a) Administration.—
3322 1. The form of administration of the association shall be
3323 described indicating the title of the officers and board of
3324 directors administration and specifying the responsibilities
3325 powers, duties, manner of selection, and removal, and
3326 compensation, if any, of officers and board members boards. In
3327 the absence of such a provision, the board of directors
3328 administration shall be composed of five members, except in the
3329 case of a common interest community that condominium which has
3330 50 five or fewer units, in which case in a not-for-profit
3331 corporation the board shall consist of at least not fewer than
3332 three members. In the absence of provisions to the contrary in
3333 the bylaws, the board of directors administration shall have a
3334 president, a secretary, and a treasurer, who shall perform the
3335 duties of such officers customarily performed by officers of
3336 corporations. Unless prohibited in the bylaws, the board of
3337 directors administration may appoint other officers and grant
3338 them the duties it deems appropriate. Unless otherwise provided
3339 in the bylaws, the officers shall serve without compensation and
3340 at the pleasure of the board of administration. Unless otherwise
3341 provided in the bylaws, the members of the board shall serve
3342 without compensation.
3343 2. When a unit owner of a residential unit condominium
3344 files a written inquiry and has proof of delivery to by
3345 certified mail with the association or its manager board of
3346 administration, the board must shall respond in writing to the
3347 unit owner within 15 30 days after receipt of the inquiry. The
3348 board’s response shall either give a substantive response to the
3349 inquirer, notify the inquirer that a legal opinion has been
3350 requested, or notify the inquirer that advice has been requested
3351 from the division. If the board requests advice is requested
3352 from the division, the board shall, within 10 days after its
3353 receipt of the advice, provide in writing a substantive response
3354 to the inquirer. If a legal opinion is requested, the board
3355 shall, within 30 60 days after the receipt of the inquiry,
3356 provide in writing a substantive response to the inquiry. The
3357 failure to provide a substantive response to the inquiry as
3358 provided in this subparagraph herein precludes the association
3359 board from recovering attorney fees and costs in any subsequent
3360 litigation, administrative proceeding, or arbitration arising
3361 out of the inquiry. The division shall association may through
3362 its board of administration adopt reasonable policies rules and
3363 regulations regarding the frequency and manner of responding to
3364 unit owner inquiries, one of which may be that the association
3365 is only obligated to respond to one written inquiry per unit in
3366 any given 30-day period. In such a case, any additional inquiry
3367 or inquiries must be responded to in the subsequent 30-day
3368 period, or periods, as applicable.
3369 3. Any substantive response must include, at a minimum, a
3370 restatement of the issue presented by the owner, the board’s
3371 written response to the issue, and the board’s actions or
3372 intended actions in response to the issue, in addition to all
3373 other facts, opinions, requests, and positions taken that are
3374 relevant to the issue. In the event an outside opinion was
3375 requested by the board and the request was conveyed to the unit
3376 owner in an initial response causing a delayed final response,
3377 the outside opinion text will also be included in the board’s
3378 subsequent response to the unit owner.
3379 4. A unit owner who does not receive a substantive response
3380 within 15 days is entitled to the actual damages or minimum
3381 damages for the association’s willful failure to comply with
3382 this paragraph. The minimum damages shall be $100 per calendar
3383 day for up to 20 business days, beginning on the 16th business
3384 day after receipt of the written request. The time limit may
3385 only be extended if the division has not responded.
3386 (b) Quorum; voting requirements; proxies.—
3387 1. Unless a lower number is provided in the bylaws, the
3388 percentage of voting interests required to constitute a quorum
3389 at a meeting of the members in a residential association is a
3390 majority of the total eligible voting interests. Unless
3391 otherwise provided in this chapter or in the declaration,
3392 articles of incorporation, or bylaws, and except as provided in
3393 subparagraph (d)8. subparagraph (d)4., decisions shall be made
3394 by a majority of the voting interests represented at a meeting
3395 at which a quorum is present.
3396 a. If a quorum is not attained, the meeting may be
3397 rescheduled within 30 days with a notice of at least 14 days to
3398 the members not present in person or by proxy. The rescheduled
3399 meetings shall have a quorum requirement of 40 percent of the
3400 total eligible voting interests and, if a quorum is not
3401 attained, may be rescheduled as many times as necessary with the
3402 quorum requirement reduced by 10 percent for each rescheduled
3403 meeting until a quorum is attained.
3404 b. Unless otherwise provided in this chapter or in the
3405 articles of incorporation or bylaws, decisions that require a
3406 vote of the members in a residential association must be
3407 approved by at least a majority of the voting interests present,
3408 in person or by proxy, at a meeting where a quorum has been
3409 attained.
3410 c. Proxies provided for the original meeting are valid for
3411 each successive meeting if the successive meeting is held not
3412 more than 90 days after the date of the original meeting.
3413 2. Except as specifically otherwise provided herein, unit
3414 owners in a residential association condominium may not vote by
3415 general proxy, but may vote by limited proxies substantially
3416 conforming to a limited proxy form adopted by the division.
3417 a. A voting interest or consent right allocated to a unit
3418 owned by the association may not be exercised or considered for
3419 any purpose, whether for a quorum, an election, or otherwise.
3420 b. Limited proxies and general proxies may be used to
3421 establish a quorum.
3422 c. Limited proxies shall be used for votes taken to waive
3423 or reduce reserves in accordance with subparagraph (g)2.
3424 subparagraph (f)2.;
3425 d. For votes taken to waive the financial reporting
3426 requirements of s. 718.111(13).;
3427 e. For votes taken to amend the documents declaration
3428 pursuant to s. 718.110.;
3429 f. For votes taken to amend the articles of incorporation
3430 or bylaws pursuant to this section.; and
3431 g. For any other matter for which this chapter requires or
3432 permits a vote of the unit owners.
3433 h. Limited proxies and general proxies may not be used for
3434 the election of board members in a residential association.
3435 General proxies may be used for matters for which limited
3436 proxies are not required and may be used to vote for
3437 nonsubstantive changes to items for which a limited proxy is
3438 required and given. Notwithstanding this sub-subparagraph, a
3439 unit owner may vote in person at unit owner meetings.
3440 3. Except as specifically otherwise provided in this
3441 paragraph, unit owners in a residential association may not vote
3442 by general proxies but may vote by limited proxies substantially
3443 conforming to a limited proxy form adopted by the division. A
3444 voting interest or consent right allocated to a unit owned by
3445 the association may not be exercised or considered for any
3446 purpose, including a quorum, an election, or any other matter.
3447 4. Limited proxies and general proxies may be used to
3448 establish a quorum.
3449 5. Limited proxies may be used for votes taken to waive or
3450 reduce reserves in accordance with subparagraph (f)2. for votes
3451 taken:
3452 a. To waive the financial reporting requirements in s.
3453 718.111(13);
3454 b. To amend the declaration pursuant to s. 718.110;
3455 c. To amend the articles of incorporation or bylaws
3456 pursuant to this section; or
3457 d. For any other matter that this chapter requires or
3458 authorizes a vote of the unit owners.
3459
3460 This subparagraph does not limit the use of general proxies or
3461 require the use of limited proxies for any agenda item or
3462 election at any meeting of a timeshare association or a
3463 nonresidential association.
3464 6. Except as provided in paragraph (d), a limited proxy or
3465 general proxy, limited or general, may not be used in the
3466 election of board members in a residential condominium. General
3467 proxies may be used for other matters for which limited proxies
3468 are not required, and may be used in voting for nonsubstantive
3469 changes to items for which a limited proxy is required and
3470 given. Notwithstanding this paragraph subparagraph, unit owners
3471 may vote in person at unit owner meetings. This subparagraph
3472 does not limit the use of general proxies or require the use of
3473 limited proxies for any agenda item or election at any meeting
3474 of a timeshare condominium association or a nonresidential
3475 condominium association.
3476 7.3. A proxy given is effective only for the specific
3477 meeting for which originally given and any lawfully adjourned
3478 meetings thereof. A proxy is not valid longer than 90 days after
3479 the date of the first meeting for which it was given and may be
3480 revoked. Each proxy is revocable at any time at the pleasure of
3481 the unit owner executing it at any time prior to a vote being
3482 taken on questions addressed on the proxy.
3483 4. A member of the board of administration or a committee
3484 may submit in writing his or her agreement or disagreement with
3485 any action taken at a meeting that the member did not attend.
3486 This agreement or disagreement may not be used as a vote for or
3487 against the action taken or to create a quorum.
3488 8.5. A board or committee member’s participation in a
3489 meeting via telephone, real-time videoconferencing, or similar
3490 real-time electronic or video communication counts toward a
3491 quorum, and such member may vote as if physically present. A
3492 speaker must be used so that the conversation of such members
3493 may be heard by the board or committee members attending in
3494 person as well as by any unit owners present at a meeting.
3495 9. If a board or committee meeting includes meeting by
3496 telephone conference or other electronic means, all unit owners
3497 must be authorized to attend by such means if they are or can be
3498 made available, at the unit owners’ expense, and all meeting
3499 notices shall include information necessary for a unit owner to
3500 participate in the meeting. Electronic means of communication
3501 must provide for two-way communications between all parties at
3502 all times unless technical issues exist that require a “listen
3503 only” form of communication. When board or committee members are
3504 attending a meeting by electronic means, all votes must be
3505 recorded as roll call votes.
3506 10. If a voting member is delinquent in excess of 90 days
3507 for the nonpayment of regular or special assessments, the voting
3508 rights of the member shall be suspended and such member may not
3509 be considered for the purpose of establishing a quorum. The
3510 percentage of the membership required for a quorum shall include
3511 only such nondelinquent members.
3512 (c) Board of directors’ administration meetings.—Meetings
3513 of the board of directors administration at which a quorum of
3514 the board members is present are open to all unit owners. The
3515 board must use board meetings for consideration and discussion,
3516 and the board may not conclude any decisions before the owners
3517 have an opportunity to witness the deliberations. Members of the
3518 board of directors administration may use e-mail as a means of
3519 communication but may not cast a vote on an association matter
3520 via e-mail.
3521 1. A unit owner may audio tape record or video record
3522 videotape the meetings. The division shall adopt reasonable
3523 rules governing such recordings. A copy of such recording shall
3524 be made available to the association upon request and at the
3525 association’s expense. A unit owner with a hearing or vision
3526 disability may have an interpreter accompany him or her if the
3527 assistance does not disrupt the board meeting. A unit owner not
3528 proficient in English may have an interpreter accompany him or
3529 her if the translating does not disrupt the board meeting.
3530 2. Upon notice to the unit owners, the board shall
3531 designate by rule a specific location on the common interest
3532 community property or association property where notices of
3533 board meetings shall be posted. If there is no common interest
3534 community property or association property where notices can be
3535 posted, notices of board meetings shall be mailed, hand
3536 delivered, or electronically transmitted to each unit owner at
3537 least 14 days before the board meeting.
3538 3. Notice of board meetings that specifically identifies
3539 all agenda items must be posted conspicuously on the common
3540 interest community property at least 48 continuous hours before
3541 the board meeting, except in an emergency. Electronic
3542 transmission of meeting notices shall be provided to any unit
3543 owner requesting such notification. The intent of board meetings
3544 is to encourage participatory consideration by the owners. Any
3545 owner may petition the board to address an item of business. If
3546 20 percent of the voting interests petition the board to address
3547 an item of business, the board, within 60 days after receipt of
3548 the petition, shall place the item on the agenda at its next
3549 regular board meeting or at a special meeting called for that
3550 purpose.
3551 4. Written notice of any board meeting at which
3552 nonemergency special assessments, or at which an amendment to
3553 rules regarding unit or common element use, will be considered
3554 must be mailed, hand delivered, or electronically transmitted to
3555 the unit owners and posted conspicuously on the common interest
3556 community property at least 14 days before the board meeting.
3557 Evidence of the notice shall be made by affidavit executed by
3558 the person providing the notice and filed with the official
3559 records of the association.
3560 5. In addition to the physical posting of the notice on the
3561 common interest community property, the association may adopt a
3562 procedure for conspicuously posting and repeatedly broadcasting
3563 the notice and agenda on a closed-circuit cable television
3564 system serving the association. The notice and agenda must be
3565 broadcast at least four times every broadcast hour of each day
3566 that a posted notice is required under this paragraph. If
3567 broadcast notice is provided, the notice and agenda must be
3568 broadcast in a manner and for a sufficient continuous length of
3569 time so as to allow an average reader to observe the notice and
3570 agenda and read and comprehend the entire content of the notice
3571 and agenda.
3572 6. Notice of any meeting in which regular or special
3573 assessments are to be considered shall specifically state that
3574 regular or special assessments will be considered and the
3575 nature, estimated cost, and description of the purposes of such
3576 assessments.
3577 7. Any item not included on the notice may be taken up on
3578 an emergency basis by at least a majority plus one vote of the
3579 board members if they are reasonably available. The emergency
3580 action shall be noticed and ratified at the next regular board
3581 meeting.
3582 8. The right to attend board such meetings includes the
3583 right to speak at board such meetings with reference to all
3584 designated agenda items when the item is addressed by the board
3585 and before the agenda item is voted on. The division shall adopt
3586 reasonable rules governing the tape recording and videotaping of
3587 the meeting. The association may adopt written reasonable rules
3588 governing the frequency, duration, and manner of unit owner
3589 statements.
3590 9. A committee may be appointed by the board if it is
3591 comprised of less than a quorum of board members. The committee
3592 may consider items of personnel, discipline, or contracts
3593 provided the committee’s minutes and recommendations are
3594 considered at the next board meeting.
3595 10. Meetings of a committee of the board are subject to the
3596 provisions of this paragraph.
3597 1. Adequate notice of all board meetings, which must
3598 specifically identify all agenda items, must be posted
3599 conspicuously on the condominium property at least 48 continuous
3600 hours before the meeting except in an emergency. If 20 percent
3601 of the voting interests petition the board to address an item of
3602 business, the board, within 60 days after receipt of the
3603 petition, shall place the item on the agenda at its next regular
3604 board meeting or at a special meeting called for that purpose.
3605 An item not included on the notice may be taken up on an
3606 emergency basis by a vote of at least a majority plus one of the
3607 board members. Such emergency action must be noticed and
3608 ratified at the next regular board meeting. However, written
3609 notice of a meeting at which a nonemergency special assessment
3610 or an amendment to rules regarding unit use will be considered
3611 must be mailed, delivered, or electronically transmitted to the
3612 unit owners and posted conspicuously on the condominium property
3613 at least 14 days before the meeting. Evidence of compliance with
3614 this 14-day notice requirement must be made by an affidavit
3615 executed by the person providing the notice and filed with the
3616 official records of the association. Upon notice to the unit
3617 owners, the board shall, by duly adopted rule, designate a
3618 specific location on the condominium or association property
3619 where all notices of board meetings must be posted. If there is
3620 no condominium property or association property where notices
3621 can be posted, notices shall be mailed, delivered, or
3622 electronically transmitted to each unit owner at least 14 days
3623 before the meeting. In lieu of or in addition to the physical
3624 posting of the notice on the condominium property, the
3625 association may, by reasonable rule, adopt a procedure for
3626 conspicuously posting and repeatedly broadcasting the notice and
3627 the agenda on a closed-circuit cable television system serving
3628 the condominium association. However, if broadcast notice is
3629 used in lieu of a notice physically posted on condominium
3630 property, the notice and agenda must be broadcast at least four
3631 times every broadcast hour of each day that a posted notice is
3632 otherwise required under this section. If broadcast notice is
3633 provided, the notice and agenda must be broadcast in a manner
3634 and for a sufficient continuous length of time so as to allow an
3635 average reader to observe the notice and read and comprehend the
3636 entire content of the notice and the agenda. Notice of any
3637 meeting in which regular or special assessments against unit
3638 owners are to be considered must specifically state that
3639 assessments will be considered and provide the nature, estimated
3640 cost, and description of the purposes for such assessments.
3641 2. Meetings of a committee to take final action on behalf
3642 of the board or make recommendations to the board regarding the
3643 association budget are subject to this paragraph. Meetings of a
3644 committee that does not take final action on behalf of the board
3645 or make recommendations to the board regarding the association
3646 budget are subject to this section, unless those meetings are
3647 exempted from this section by the bylaws of the association.
3648 11.3. Notwithstanding any other law, the requirement that
3649 board meetings and committee meetings be open to the unit owners
3650 does not apply to:
3651 a. meetings between the board or a committee and the
3652 association’s attorney, with respect to proposed or pending
3653 litigation, if the meeting is held for the purpose of seeking or
3654 rendering legal advice.; or
3655 b. Board meetings held for the purpose of discussing
3656 personnel matters.
3657 (d) Unit owner meetings.—
3658 1. An annual meeting of the unit owners shall be held at
3659 the location provided in the association bylaws and, if the
3660 bylaws are silent as to the location, the meeting shall be held
3661 within 10 45 miles of the common interest community condominium
3662 property. However, such distance requirement does not apply to
3663 an association governing a timeshare association condominium.
3664 2. Unless the bylaws provide otherwise, A vacancy on the
3665 board caused by the expiration of a director’s term shall be
3666 filled by electing a new board member, and the election must be
3667 by secret ballot. However, An election is not required if the
3668 number of vacancies equals or exceeds the number of candidates,
3669 an election is not required.
3670 3. For purposes of this paragraph, the term “candidate”
3671 means an eligible person who has timely submitted the written
3672 notice, as described in sub-subparagraph 4.a., of his or her
3673 intention to become a candidate. Except in a timeshare or
3674 nonresidential condominium, or if the staggered term of a board
3675 member does not expire until a later annual meeting, or if all
3676 members’ terms would otherwise expire but there are no
3677 candidates, The terms of all board members expire at the annual
3678 meeting and current board, and such members may stand for
3679 reelection unless prohibited by the bylaws. If no person is
3680 interested in, or demonstrates an intention to run for, the
3681 position of a board member whose term has expired, the current
3682 board member may be reappointed to the board if he or she
3683 provides a signed certification and educational certificate as
3684 provided in subparagraph 9. If the bylaws or articles of
3685 incorporation permit terms of no more than 2 years, the
3686 association board members may serve 2-year terms. If the number
3687 of board members whose terms expire at the annual meeting equals
3688 or exceeds the number of candidates, the candidates become
3689 members of the board effective upon the adjournment of the
3690 annual meeting. Unless the bylaws provide otherwise, any
3691 remaining vacancies shall be filled by the affirmative vote of
3692 the majority of the directors making up the newly constituted
3693 board even if the directors constitute less than a quorum or
3694 there is only one director. In a residential condominium
3695 association of more than 10 units or in a residential
3696 condominium association that does not include timeshare units or
3697 timeshare interests, coowners
3698 4. Co-owners of a unit may not serve as members of the
3699 board of directors at the same time unless they own more than
3700 one unit or unless there are not enough eligible candidates to
3701 fill the vacancies on the board at the time of the vacancy. A
3702 unit owner in a residential common interest community
3703 condominium desiring to be a candidate for board membership must
3704 comply with subparagraph 3. sub-subparagraph 4.a. and must be
3705 eligible to be a candidate to serve on the board of directors at
3706 the time of the deadline for submitting a notice of intent to
3707 run in order to have his or her name listed as a proper
3708 candidate on the ballot or to serve on the board. A person who
3709 has been suspended or removed by the division under this
3710 chapter, or who is delinquent in the payment of any fee or
3711 assessment as provided in paragraph (h) monetary obligation due
3712 to the association, is not eligible to be a candidate for board
3713 membership and may not be listed on the ballot.
3714 5. A person who has entered a plea of nolo contendere to or
3715 been convicted of any felony in this state or in a United States
3716 District or Territorial Court, or who has entered a plea of nolo
3717 contendere to or been convicted of any offense in another
3718 jurisdiction which would be considered a felony if committed in
3719 this state, is not eligible for board membership unless such
3720 felon’s civil rights have been restored for at least 10 5 years
3721 as of the date such person seeks election to the board. The
3722 validity of an action by the board is not affected if it is
3723 later determined that a board member of the board is ineligible
3724 for board membership due to having been convicted of a felony.
3725 This subparagraph does not limit the term of a member of the
3726 board of a nonresidential condominium.
3727 6.3. The bylaws must provide the method of calling meetings
3728 of unit owners, including annual meetings. Written notice that
3729 must include an agenda shall, must be mailed, hand delivered, or
3730 electronically transmitted to each unit owner at least 14 days
3731 before the annual meeting, and must be posted in a conspicuous
3732 place on the common interest community condominium property at
3733 least 14 continuous days before the annual meeting. Upon notice
3734 to the unit owners, the board shall, by duly adopted rule,
3735 designate a specific location on the common interest community
3736 condominium property or association property where all notices
3737 of unit owner meetings shall be posted. However, This
3738 requirement does not apply if there is no common interest
3739 community condominium property or association property where for
3740 posting notices can be posted, this requirement does not apply.
3741 In lieu of, or in addition to, the physical posting of meeting
3742 notices, the association may, by reasonable rule, adopt a
3743 procedure for conspicuously posting and repeatedly broadcasting
3744 the notice and the agenda on a closed-circuit cable television
3745 system serving the condominium association. However, if
3746 broadcast notice is used in lieu of a notice posted physically
3747 on the condominium property, the notice and agenda must be
3748 broadcast at least four times every broadcast hour of each day
3749 that a posted notice is otherwise required under this section.
3750 If broadcast notice is provided, the notice and agenda must be
3751 broadcast in a manner and for a sufficient continuous length of
3752 time so as to allow an average reader to observe the notice and
3753 read and comprehend the entire content of the notice and the
3754 agenda.
3755 7. Unless a unit owner waives in writing the right to
3756 receive notice of the annual meeting, such notice shall must be
3757 hand delivered, mailed, or electronically transmitted to each
3758 unit owner. Notice for meetings and notice for all other
3759 purposes must be mailed to each unit owner at the address last
3760 furnished to the association by the unit owner, or hand
3761 delivered to each unit owner. However, if a unit is owned by
3762 more than one person, the association shall must provide notice
3763 for meetings and all other purposes to the address that the
3764 developer initially identifies for that purpose and thereafter
3765 as one or more of the owners of the unit advise the association
3766 in writing, or if no address is given or the owners of the unit
3767 do not agree, to the address provided on the county records of
3768 the property appraiser. The deed of record. An officer of the
3769 association, or the manager or other person providing notice of
3770 the association meeting shall, must provide an affidavit or
3771 United States Postal Service certificate of mailing, to be
3772 included in the official records of the association affirming
3773 that the notice was mailed, electronically transmitted, or hand
3774 delivered in accordance with this subparagraph provision.
3775 8.4. The members of the board of a residential common
3776 interest community condominium shall be elected by secret
3777 written ballot or voting machine. Proxies may not be used in
3778 electing the board in general elections or elections to fill
3779 vacancies caused by recall, resignation, or otherwise, unless
3780 otherwise provided in this chapter. This subparagraph does not
3781 apply to an association governing a timeshare condominium.
3782 9.a. At least 60 days, but not more than 90 days, before a
3783 scheduled election, the association shall mail, hand deliver, or
3784 electronically transmit, whether by separate association mailing
3785 or included in another association mailing, delivery, or
3786 transmission, including regularly published newsletters, to each
3787 unit owner entitled to a vote, a first notice of the date of the
3788 election and the procedure to qualify as a candidate for the
3789 board.
3790 a. Within 1 year before, or 90 days after, being elected or
3791 appointed to the board, the newly elected or appointed member
3792 must:
3793 (I) Submit an educational certificate of satisfactory
3794 completion of the educational curriculum administered by a
3795 division-approved common interest community education provider.
3796 (II) Submit a written certification attesting that he or
3797 she has read the documents, bylaws, current written policies,
3798 provisions of this chapter, applicable sections of the Florida
3799 Administrative Code, and association rules; he or she will work
3800 to uphold such documents and policies to the best of his or her
3801 ability; and he or she will faithfully discharge his or her
3802 fiduciary responsibility to the association’s members.
3803 b. The written certification and educational certificate
3804 must be valid and are not required to be resubmitted if the
3805 member serves on the board without interruption. Failure to
3806 complete the requirements of this sub-subparagraph excludes the
3807 member from being reelected, appointed, or eligible to continue
3808 to serve on the board.
3809 c. In order to be eligible to be included on the ballot and
3810 serve on the board, the member’s written certification and
3811 educational certificate must be entered in the minutes of the
3812 association and made available for verification by any owner.
3813 10. A unit owner or other eligible person desiring to be a
3814 candidate for the board must give written notice of his or her
3815 intent to be a candidate to the association at least 40 days
3816 before a scheduled election along with the signed certification
3817 provided for in this subparagraph. If the certification is not
3818 provided, or the person is otherwise ineligible for election,
3819 his or her name may not be listed on the ballot.
3820 11. Together with the written notice and agenda as set
3821 forth in subparagraph 6. 3., the association shall mail,
3822 deliver, or electronically transmit a second notice of the
3823 election to all unit owners entitled to vote, together with a
3824 ballot that lists all eligible candidates. Upon request of a
3825 candidate, an information sheet, no larger than 8 1/2 inches by
3826 11 inches, which must be furnished by the candidate at least 35
3827 days before the election, must be included with the mailing,
3828 delivery, or transmission of the ballot, with the costs of
3829 mailing, delivery, or electronic transmission and copying to be
3830 borne by the association. The association is not liable for the
3831 contents of the information sheets prepared by the candidates.
3832 In order to reduce costs, the association may print or duplicate
3833 the information sheets on both sides of the paper.
3834 12. The division shall by rule establish voting procedures
3835 consistent with this subparagraph sub-subparagraph, including
3836 rules establishing procedures for giving notice by electronic
3837 transmission and rules providing for the secrecy of ballots.
3838 Elections shall be decided by a plurality of the ballots cast.
3839 There is no quorum requirement; however, at least 20 percent of
3840 the eligible voters must cast a ballot in order to have a valid
3841 election of members of the board. A unit owner may not permit
3842 any other person to vote his or her ballot, and any such ballots
3843 improperly cast are invalid. A unit owner who violates this
3844 provision may be assessed a financial penalty fined by the
3845 association in accordance with s. 718.303. A unit owner who
3846 needs assistance in casting the ballot for the reasons stated in
3847 s. 101.051 may obtain such assistance. The regular election
3848 shall must occur on the date of the annual meeting.
3849 Notwithstanding this subparagraph sub-subparagraph, an election
3850 is not required unless more candidates file notices of intent to
3851 run or are nominated than board vacancies exist. Tie votes may
3852 be determined by lot or runoff election at the option of the
3853 candidates and shall be by runoff election if the candidates do
3854 not agree on a method.
3855 b. Within 90 days after being elected or appointed to the
3856 board of an association of a residential condominium, each newly
3857 elected or appointed director shall certify in writing to the
3858 secretary of the association that he or she has read the
3859 association’s declaration of condominium, articles of
3860 incorporation, bylaws, and current written policies; that he or
3861 she will work to uphold such documents and policies to the best
3862 of his or her ability; and that he or she will faithfully
3863 discharge his or her fiduciary responsibility to the
3864 association’s members. In lieu of this written certification,
3865 within 90 days after being elected or appointed to the board,
3866 the newly elected or appointed director may submit a certificate
3867 of having satisfactorily completed the educational curriculum
3868 administered by a division-approved condominium education
3869 provider within 1 year before or 90 days after the date of
3870 election or appointment. The written certification or
3871 educational certificate is valid and does not have to be
3872 resubmitted as long as the director serves on the board without
3873 interruption. A director of an association of a residential
3874 condominium who fails to timely file the written certification
3875 or educational certificate is suspended from service on the
3876 board until he or she complies with this sub-subparagraph. The
3877 board may temporarily fill the vacancy during the period of
3878 suspension. The secretary shall cause the association to retain
3879 a director’s written certification or educational certificate
3880 for inspection by the members for 5 years after a director’s
3881 election or the duration of the director’s uninterrupted tenure,
3882 whichever is longer. Failure to have such written certification
3883 or educational certificate on file does not affect the validity
3884 of any board action.
3885 c. Any challenge to the election process must be commenced
3886 within 60 days after the election results are announced.
3887 13.5. Any Approval by unit owners called for by this
3888 chapter or the applicable documents declaration or bylaws,
3889 including, but not limited to, the approval requirement in s.
3890 718.111(8), must be made at a duly noticed meeting of unit
3891 owners and is subject to all requirements of this chapter or the
3892 applicable condominium documents relating to unit owner
3893 decisionmaking, except that unit owners may take action by
3894 written agreement, without meetings, on matters for which action
3895 by written agreement without meetings is not expressly
3896 prohibited allowed by the applicable bylaws or documents
3897 declaration or any law that provides for such action.
3898 14.6. Unit owners may waive notice of specific meetings if
3899 allowed by the applicable bylaws or declaration or any law.
3900 Notice of meetings of the board of administration, unit owner
3901 meetings, except unit owner meetings called to recall board
3902 members under paragraph (j), and committee meetings may be given
3903 by electronic transmission or hand delivery to unit owners
3904 unless who consent to receive notice is requested by mail
3905 electronic transmission.
3906 15.7. Unit owners have The right to attend participate in
3907 meetings includes the right to speak at meetings of unit owners
3908 with reference to all designated agenda items at the time the
3909 item is addressed and before the item is voted on. However, The
3910 association may adopt written reasonable rules governing the
3911 frequency, duration, and manner of unit owner statements
3912 participation.
3913 16.8. A unit owner may audio or video tape record or
3914 videotape a meeting of the unit owners subject to reasonable
3915 rules adopted by the division. A unit owner with a hearing or
3916 vision disability may have an interpreter accompany him or her
3917 if the assistance does not disrupt the meeting. A unit owner not
3918 proficient in English may have an interpreter accompany him or
3919 her if the translating does not disrupt the meeting.
3920 17.9. Unless otherwise provided in the bylaws, any vacancy
3921 occurring on the board before the expiration of a term may be
3922 filled by the affirmative vote of the majority of the remaining
3923 directors, even if the remaining directors constitute less than
3924 a quorum, or by the sole remaining director. In the alternative,
3925 a board may hold an election to fill the vacancy, in which case
3926 the election procedures must conform to the requirements of
3927 subparagraph 9. sub-subparagraph 4.a. unless the association
3928 governs 10 units or fewer and has opted out of the statutory
3929 election process, in which case the bylaws of the association
3930 control. Unless otherwise provided in the bylaws, A board member
3931 appointed or elected under this section shall fill the vacancy
3932 until the next election for the unexpired term of the seat being
3933 filled. Filling vacancies created by recall is governed by
3934 paragraph (k) (j) and rules adopted by the division.
3935 18. Any rule or regulation of the association may be
3936 overturned by vote of a majority of owners represented in person
3937 or by proxy at a duly called meeting. Any rule or regulation
3938 ratification or revocation must be added to the agenda of the
3939 next owners’ meeting by petition of at least 10 percent of the
3940 voting interests. Any rule or regulation adopted by the board
3941 shall be added to the agenda for the annual meeting for
3942 ratification or revocation.
3943 19. Elections for members of the board of a master
3944 association are exempt from the election procedures in this
3945 paragraph if the members of the board are elected as
3946 representatives of the common interest community exclusively by
3947 the members of the common interest community they represent.
3948 (e) Special meetings.—Special meetings must be held when
3949 called by the board of directors or by at least 10 percent of
3950 the total voting interests of the association, unless a
3951 different percentage is stated in the governing documents.
3952 Business conducted at a special meeting is limited to the
3953 purposes described in the notice of the meeting.
3954 10. This chapter does not limit the use of general or
3955 limited proxies, require the use of general or limited proxies,
3956 or require the use of a written ballot or voting machine for any
3957 agenda item or election at any meeting of a timeshare
3958 condominium association or nonresidential condominium
3959 association.
3960
3961 Notwithstanding subparagraph (b)2. and sub-subparagraph 4.a., an
3962 association of 10 or fewer units may, by affirmative vote of a
3963 majority of the total voting interests, provide for different
3964 voting and election procedures in its bylaws, which may be by a
3965 proxy specifically delineating the different voting and election
3966 procedures. The different voting and election procedures may
3967 provide for elections to be conducted by limited or general
3968 proxy.
3969 (f)(e) Budget meeting.—
3970 1. Any meeting at which a proposed annual budget of an
3971 association will be considered for adoption by the board or unit
3972 owners shall be open to all unit owners. At least 14 days before
3973 the prior to such a meeting, the board shall electronically
3974 transmit to the unit owners, unless notice is requested by mail
3975 or is hand delivered deliver to each unit owner, mail to each
3976 unit owner at the address last furnished to the association by
3977 the unit owner, or electronically transmit to the location
3978 furnished by the unit owner for that purpose a notice of such
3979 meeting and a copy of the proposed annual budget. The An officer
3980 or manager of the association, or other person providing notice
3981 of such meeting, shall execute an affidavit evidencing
3982 compliance with such notice requirement, and such affidavit
3983 shall be filed among the official records of the association.
3984 2.a. If a board adopts in any fiscal year an annual budget
3985 that which requires an assessment assessments against unit
3986 owners which is 15 which exceed 115 percent or more than the
3987 amount of assessments for the preceding fiscal year, the board
3988 shall conduct a special meeting of the unit owners to consider a
3989 substitute budget if the board receives, within 21 days after
3990 adoption of the annual budget, a written request for a special
3991 meeting from at least 10 percent of all voting interests with a
3992 draft of the proposed substitute annual budget.
3993 a. The special meeting shall be conducted within 30 60 days
3994 after adoption of the annual budget and may not be rescheduled
3995 if a quorum is not present. At least 14 days before the prior to
3996 such special meeting, the board shall electronically transmit to
3997 the unit owners, unless notice is requested by mail or is hand
3998 delivered deliver to each unit owner, or mail to each unit owner
3999 at the address last furnished to the association by the unit
4000 owner, a notice of the meeting and a copy of the proposed
4001 substitute annual budget. The An officer or manager of the
4002 association, or other person providing notice of such meeting
4003 shall execute an affidavit evidencing compliance with this
4004 notice requirement, and such affidavit shall be filed among the
4005 official records of the association. Unit owners may consider
4006 and adopt a substitute budget at the special meeting. A
4007 substitute budget is adopted if approved by a majority of all
4008 voting interests unless the bylaws require adoption by a greater
4009 percentage of voting interests. If there is not a quorum at the
4010 special meeting or a substitute budget is not adopted, the
4011 annual budget previously adopted by the board shall take effect
4012 as scheduled.
4013 b. Any determination of whether assessments exceed 115
4014 percent of assessments for the prior fiscal year shall exclude
4015 any authorized provision for reasonable reserves for deferred
4016 maintenance repair or replacement of the common interest
4017 community condominium property, anticipated expenses of the
4018 association which the board does not expect to be incurred on a
4019 regular or annual basis, and statutory expense requirements or
4020 expenses over which the board has no control, or assessments for
4021 betterments to the condominium property.
4022 c. If the developer controls the board, assessments shall
4023 not exceed the 115 percent of assessments for the prior fiscal
4024 year by more than 15 percent unless approved by a majority of
4025 all voting interests other than the developer.
4026 (g)(f) Annual budget.—
4027 1. The proposed annual budget of estimated revenues and
4028 expenses shall must be detailed and must show the amounts
4029 budgeted by accounts and expense classifications, including, at
4030 a minimum, any applicable expenses listed in s. 718.504(21). A
4031 multi-common interest community multicondominium association
4032 shall adopt a separate budget of common expenses for each common
4033 interest community condominium the association operates and
4034 shall adopt a separate budget of common expenses for the
4035 association. In addition, if the association maintains limited
4036 common elements with the cost to be shared only by those
4037 entitled to use the limited common elements as provided for in
4038 s. 718.113(1), the budget or a schedule attached to it must show
4039 any amounts the amount budgeted for this maintenance. If, after
4040 turnover of control of the association to the unit owners, any
4041 of the expenses listed in s. 718.504(21) are not applicable,
4042 they need not be listed.
4043 2.a. In addition to annual operating expenses, the budget
4044 shall must include reserve accounts for capital expenditures and
4045 deferred maintenance. These accounts shall must include, but are
4046 not limited to, any item for which the full funding of, roof
4047 replacement, building painting, and pavement resurfacing,
4048 regardless of the amount of deferred maintenance expense or
4049 replacement cost would require a reserve contribution of more
4050 than $600 per year for any unit in the association, and any
4051 other item that has a deferred maintenance expense or
4052 replacement cost that exceeds $10,000.
4053 b. The amount to be reserved shall must be computed using a
4054 formula based upon estimated remaining useful life and estimated
4055 replacement cost or deferred maintenance expense of each reserve
4056 item. The total reserve contribution requirement may be
4057 calculated by pooling, as determined by the division. The
4058 association shall may adjust replacement reserve assessments
4059 annually to take into account any changes in estimates or change
4060 extension of the useful life of a reserve item caused by
4061 deferred maintenance. This subsection does not apply to an
4062 adopted budget in which the members of an association have
4063 determined, by a majority vote at a duly called meeting of the
4064 association, to provide no reserves or less reserves than
4065 required by this subsection.
4066 b. Before turnover of control of an association by a
4067 developer to unit owners other than a developer pursuant to s.
4068 718.301, the developer may vote the voting interests allocated
4069 to its units to waive the reserves or reduce the funding of
4070 reserves through the period expiring at the end of the second
4071 fiscal year after the fiscal year in which the certificate of a
4072 surveyor and mapper is recorded pursuant to s. 718.104(4)(e) or
4073 an instrument that transfers title to a unit in the condominium
4074 which is not accompanied by a recorded assignment of developer
4075 rights in favor of the grantee of such unit is recorded,
4076 whichever occurs first, after which time reserves may be waived
4077 or reduced only upon the vote of a majority of all nondeveloper
4078 voting interests voting in person or by limited proxy at a duly
4079 called meeting of the association. If a meeting of the unit
4080 owners has been called to determine whether to waive or reduce
4081 the funding of reserves and no such result is achieved or a
4082 quorum is not attained, the reserves included in the budget
4083 shall go into effect. After the turnover, the developer may vote
4084 its voting interest to waive or reduce the funding of reserves.
4085 3. Reserve funds and any interest accruing thereon shall
4086 remain in the reserve account or accounts, and must may be used
4087 only for authorized reserve expenditures unless their use for
4088 other purposes is approved in advance by a majority vote at a
4089 duly called meeting of the association. Before turnover of
4090 control of an association by a developer to unit owners other
4091 than the developer pursuant to s. 718.301, the developer
4092 controlled association may not vote to use reserves for purposes
4093 other than those for which they were intended without the
4094 approval of a majority of all nondeveloper voting interests,
4095 voting in person or by limited proxy at a duly called meeting of
4096 the association.
4097 4. The only voting interests that are eligible to vote on
4098 questions that involve waiving or reducing the funding of
4099 reserves, or using existing reserve funds for purposes other
4100 than purposes that for which the reserves were intended for, are
4101 the voting interests of the units subject to assessment to fund
4102 the reserves in question. Proxy questions relating to waiving or
4103 reducing the funding of reserves or using existing reserve funds
4104 for purposes other than purposes for which the reserves were
4105 intended must contain the following statement in capitalized,
4106 bold letters in a font size larger than any other used on the
4107 face of the proxy ballot: WAIVING OF RESERVES, IN WHOLE OR IN
4108 PART, OR ALLOWING ALTERNATIVE USES OF EXISTING RESERVES WILL MAY
4109 RESULT IN UNIT OWNER LIABILITY FOR PAYMENT OF ANTICIPATED
4110 UNANTICIPATED SPECIAL ASSESSMENTS REGARDING THOSE ITEMS.
4111 5. If the board fails to adopt an annual budget before the
4112 beginning of the fiscal year, the previous year’s budget shall
4113 continue until a new budget is adopted. When a new budget is
4114 adopted, it shall be retroactive to the beginning of the fiscal
4115 year.
4116 (h)(g) Assessments.—The manner of collecting from the unit
4117 owners their shares of the common expenses shall be stated in
4118 the bylaws. Assessments shall be made against units not less
4119 frequently than quarterly in an amount that which is not less
4120 than that required to provide funds in advance for payment of
4121 all of the anticipated current operating expenses and for all of
4122 the unpaid operating expenses previously incurred. Nothing in
4123 this paragraph shall preclude the right of an association to
4124 accelerate assessments of an owner delinquent in payment of
4125 common expenses. Accelerated assessments shall be due and
4126 payable on the date the claim of lien is filed. Such accelerated
4127 assessments shall include the amounts due for the remainder of
4128 the budget year in which the claim of lien was filed and, if the
4129 unit is foreclosed, shall not be forgiven as to the remaining
4130 portion of the year if not paid.
4131 (i)(h) Amendment of bylaws.—
4132 1. The method by which the bylaws may be amended consistent
4133 with the provisions of this chapter shall be stated. If the
4134 bylaws fail to provide a method of amendment, The bylaws may be
4135 amended if the amendment is approved by the owners of a majority
4136 of the units present and voting at a duly called meeting of the
4137 common interest community not less than two-thirds of the voting
4138 interests.
4139 2. No bylaw shall be revised or amended by reference to its
4140 title or number only. Proposals to amend existing bylaws shall
4141 contain the full text of the bylaws to be amended; new words
4142 shall be inserted in the text underlined, and words to be
4143 deleted shall be lined through with hyphens. However, if the
4144 proposed change is so extensive that this procedure would
4145 hinder, rather than assist, the understanding of the proposed
4146 amendment, it is not necessary to use underlining and hyphens as
4147 indicators of words added or deleted, but, instead, a notation
4148 must be inserted immediately preceding the proposed amendment in
4149 substantially the following language: “Substantial rewording of
4150 bylaw. See bylaw .... for present text.”
4151 3. Nonmaterial errors or omissions in the bylaw process
4152 will not invalidate an otherwise properly promulgated amendment.
4153 (j)(i) Transfer fees.—A No charge shall be made by the
4154 association or any body thereof in connection with the sale,
4155 mortgage, lease, sublease, or other transfer of a unit unless
4156 the association is not required to approve such transfer and a
4157 fee for such approval is provided for in the declaration,
4158 articles, or bylaws.
4159 1. Any such fee may be preset and may not, but in no event
4160 may such fee exceed $100. A per applicant other than
4161 husband/wife or parent/dependent child shall be, which are
4162 considered one applicant. However, if the lease or sublease is a
4163 renewal of a lease or sublease with the same lessee or
4164 sublessee, no charge shall be made.
4165 2. The foregoing Notwithstanding subparagraph 1., an
4166 association may, unless prohibited by if the documents authority
4167 to do so appears in the declaration or bylaws, require that a
4168 prospective lessee place a security deposit, in an amount not to
4169 exceed the equivalent of 1 month’s rent, into an escrow account
4170 maintained by the association. The security deposit shall
4171 protect against damages to the common elements or association
4172 property. Claims for payment of interest, claims against the
4173 deposit, refunds, and disputes under this paragraph shall be
4174 handled in the same fashion as provided in part II of chapter
4175 83.
4176 3. The lease must provide that the provisions of s. 718.303
4177 apply to such lease, including the assignment of rent to the
4178 association in the case of delinquency of assessments, and if
4179 the provisions of s. 718.303 are not included in such lease,
4180 such provisions shall be deemed included.
4181 (k)(j) Recall of board members.—Subject to s. 718.301, Any
4182 member of the board of directors administration may be recalled
4183 and removed from office with or without cause by the vote or
4184 agreement in writing by a majority of all the voting interests
4185 on a form provided by the division. A special meeting of the
4186 unit owners to recall a member or members of the board of
4187 administration may be called by 10 percent of the voting
4188 interests giving notice of the meeting as required for a meeting
4189 of unit owners, and the notice shall state the purpose of the
4190 meeting. Electronic transmission may not be used as a method of
4191 giving notice of a meeting called in whole or in part for this
4192 purpose.
4193 1. If the recall is approved by a majority of all voting
4194 interests by a vote at a meeting, the recall will be effective
4195 as provided in this paragraph. The board shall duly notice and
4196 hold a board meeting within 5 full business days after the
4197 adjournment of the unit owner meeting to recall one or more
4198 board members. At the meeting, the board shall either certify
4199 the recall, in which case such member or members shall be
4200 recalled effective immediately and shall turn over to the board
4201 within 5 full business days any and all records and property of
4202 the association in their possession, or shall proceed as set
4203 forth in subparagraph 3.
4204 1.2. The If the proposed recall is by an agreement in
4205 writing by a majority of all voting interests, the agreement in
4206 writing or a copy of the agreement thereof shall be served on
4207 the association or community association manager by certified
4208 mail or by personal service in the manner authorized by chapter
4209 48 and the Florida Rules of Civil Procedure.
4210 2. The board of directors administration shall duly notice
4211 and hold a meeting of the board within 5 full business days
4212 after receipt of the agreement in writing. At the meeting, the
4213 board shall either certify the written agreement to recall a
4214 member or members of the board, in which case such member or
4215 members shall be recalled effective immediately and shall turn
4216 over to the board within 5 full business days any and all
4217 records and property of the association in their possession, or
4218 proceed as described in subparagraph 3.
4219 3. If the board determines not to certify the written
4220 agreement to recall a member or members of the board, or does
4221 not certify the recall by a vote at a meeting, the board shall,
4222 within 5 full business days after the meeting, file with the
4223 division a petition for arbitration pursuant to the procedures
4224 in s. 718.1255. For the purposes of this section, the unit
4225 owners who voted at the meeting or who executed the agreement in
4226 writing shall constitute one party under the petition for
4227 arbitration. If the arbitrator certifies the recall as to any
4228 member or members of the board, the recall will be effective
4229 upon mailing of the final order of arbitration to the
4230 association. If the association fails to comply with the order
4231 of the arbitrator, the division may take action pursuant to s.
4232 718.501. Any member or members so recalled shall deliver to the
4233 board any and all records of the association in their possession
4234 within 5 full business days after the effective date of the
4235 recall.
4236 4. If the board fails to duly notice and hold a board
4237 meeting within 5 full business days after service of an
4238 agreement in writing or within 5 full business days after the
4239 adjournment of the unit owner recall meeting, the recall shall
4240 be deemed effective and the board members so recalled shall
4241 immediately turn over to the board any and all records and
4242 property of the association.
4243 5. If the board fails to duly notice and hold the required
4244 meeting or fails to file the required petition, the unit owner
4245 representative may file a petition pursuant to s. 718.1255
4246 challenging the board’s failure to act. The petition must be
4247 filed within 60 days after the expiration of the applicable 5
4248 full-business-day period. The review of a petition under this
4249 subparagraph is limited to the sufficiency of service on the
4250 board and the facial validity of the written agreement or
4251 ballots filed.
4252 5.6. If a vacancy occurs on the board as a result of a
4253 recall or removal and less than a majority of the board members
4254 are removed, the vacancy may be filled by persons specified on
4255 the recall petition form. If the vacancies exceed the number of
4256 replacement directors on the recall form, the vacancy may be
4257 filled by the affirmative vote of a majority of the remaining
4258 directors, notwithstanding any provision to the contrary
4259 contained in this subsection. If vacancies occur on the board as
4260 a result of a recall and a majority or more of the board members
4261 are removed, the vacancies shall be filled in accordance with
4262 procedural rules to be adopted by the division, which rules need
4263 not be consistent with this subsection. The rules must provide
4264 procedures governing the conduct of the recall election as well
4265 as the operation of the association during the period after a
4266 recall but before the recall election.
4267 6.7. Any recalled director who fails to turn over
4268 association records pursuant to this paragraph commits a
4269 violation of s. 718.111(12)(d) and shall be fined by the
4270 division A board member who has been recalled may file a
4271 petition pursuant to s. 718.1255 challenging the validity of the
4272 recall. The petition must be filed within 60 days after the
4273 recall is deemed certified. The association and the unit owner
4274 representative shall be named as the respondents.
4275 8. The division may not accept for filing a recall
4276 petition, whether filed pursuant to subparagraph 1.,
4277 subparagraph 2., subparagraph 5., or subparagraph 7. and
4278 regardless of whether the recall was certified, when there are
4279 60 or fewer days until the scheduled reelection of the board
4280 member sought to be recalled or when 60 or fewer days have
4281 elapsed since the election of the board member sought to be
4282 recalled.
4283 (l)(k) Arbitration.—There shall be a provision for
4284 mandatory nonbinding arbitration as provided for in s. 718.1255
4285 for any residential common interest community condominium.
4286 (m)(l) Certificate of compliance.—A provision that a
4287 certificate of compliance from a licensed electrical contractor,
4288 or electrician, or engineer may be accepted by the association’s
4289 board as evidence of compliance of the common interest community
4290 condominium units with the applicable fire and life safety code
4291 must be included. Notwithstanding chapter 633 or of any other
4292 code, statute, ordinance, administrative rule, or regulation, or
4293 any interpretation of the foregoing, an association, residential
4294 common interest community condominium, or unit owner is not
4295 obligated to retrofit the common elements, association property,
4296 or units of a residential common interest community condominium
4297 with a fire sprinkler system in a building that has been
4298 certified for occupancy by the applicable governmental entity if
4299 the unit owners have voted to forego such retrofitting by the
4300 affirmative vote of a majority of all voting interests in the
4301 affected common interest community condominium. The local
4302 authority having jurisdiction may not require completion of
4303 retrofitting with a fire sprinkler system before January 1,
4304 2020. By December 31, 2016, a residential common interest
4305 community condominium association that is not in compliance with
4306 the requirements for a fire sprinkler system and has not voted
4307 to forego retrofitting of such a system must initiate an
4308 application for a building permit for the required installation
4309 with the local government having jurisdiction demonstrating that
4310 the association will become compliant by December 31, 2019.
4311 1. A vote to forego retrofitting may be obtained by limited
4312 proxy or by a ballot personally cast at a duly called membership
4313 meeting, or by execution of a written consent by the member, and
4314 is effective upon recording a certificate attesting to such vote
4315 in the public records of the county where the common interest
4316 community condominium is located. The association shall mail or
4317 hand deliver to each unit owner written notice at least 14 days
4318 before the membership meeting in which the vote to forego
4319 retrofitting of the required fire sprinkler system is to take
4320 place. Within 30 days after the association’s opt-out vote,
4321 notice of the results of the opt-out vote must be mailed or hand
4322 delivered to all unit owners. Evidence of compliance with this
4323 notice requirement shall must be made by an affidavit executed
4324 by the person providing the notice and filed among the official
4325 records of the association. After notice is provided to each
4326 owner, a copy must be provided by the current owner to a new
4327 owner before closing and shall be provided by a unit owner or
4328 agent to a renter before signing a lease.
4329 2. If there has been a previous vote to forego
4330 retrofitting, a vote to require retrofitting may be obtained at
4331 a special meeting of the unit owners called by a petition of at
4332 least 10 percent of the voting interests. Such a vote may only
4333 be called once every 3 years. Notice shall be provided as
4334 required for any regularly called meeting of the unit owners,
4335 and must state the purpose of the meeting. Electronic
4336 transmission may not be used to provide notice of a meeting
4337 called in whole or in part for this purpose.
4338 3. As part of the information collected annually from
4339 common interest communities condominiums, the division shall
4340 require common interest community condominium associations to
4341 report the membership vote and recording of a certificate under
4342 this subsection and, if retrofitting has been undertaken, the
4343 per-unit cost of such work. The division shall annually report
4344 to the Division of State Fire Marshal of the Department of
4345 Financial Services the number of units condominiums that have
4346 elected to forego retrofitting.
4347 4. Notwithstanding s. 553.509, a common interest community
4348 residential association may not be obligated to, and may forego
4349 the retrofitting of, any improvements required by s. 553.509(2)
4350 upon an affirmative vote of a majority of the voting interests
4351 in the affected common interest community condominium.
4352 5. A notice of approval by the division of the opt-out
4353 provision shall be posted in a conspicuous place adjacent to
4354 each elevator door on the first floor of the building.
4355 (n)(m) Common elements; limited power to convey.—
4356 1. With respect to condominiums created on or after October
4357 1, 1994, the bylaws shall include a provision granting The board
4358 of directors may association a limited power to convey a portion
4359 of the common elements to a condemning authority for the purpose
4360 of providing utility easements, right-of-way expansion, or other
4361 public purposes, whether negotiated or as a result of eminent
4362 domain proceedings.
4363 2. In any case where the bylaws are silent as to the
4364 association’s power to convey common elements as described in
4365 subparagraph 1., the bylaws shall be deemed to include the
4366 provision described in subparagraph 1.
4367 (o)(n) Director or officer delinquencies.—A director or
4368 officer more than 90 days delinquent in the payment of any fee
4369 or assessment monetary obligation due the association shall be
4370 deemed to have abandoned the office, creating a vacancy in the
4371 office to be filled according to law.
4372 (p)(o) Director or officer offenses.—A director or officer
4373 charged by information or indictment with a felony theft or
4374 embezzlement offense involving the association’s funds or
4375 property must be removed from office, creating a vacancy in the
4376 office to be filled according to law until the end of the period
4377 of the suspension or the end of the director’s term of office,
4378 whichever occurs first. While such director or officer has such
4379 criminal charge pending, he or she may not be appointed or
4380 elected to a position as a director or officer. However, if the
4381 charges are resolved without a finding of guilt, the director or
4382 officer shall be reinstated for the remainder of his or her term
4383 of office, if any.
4384 (q) Member responsibility.—In determining whether a member
4385 of the board performed his or her duties pursuant to s.
4386 718.111(1)(f), the division or commission may consider whether
4387 the member of the board has:
4388 1. Acted outside the scope of the authority granted in the
4389 governing documents;
4390 2. Acted for reasons of self-interest, gain, prejudice, or
4391 revenge;
4392 3. Committed an act or omission that constitutes
4393 incompetence, negligence, or gross negligence;
4394 4. Disclosed confidential information relating to a unit’s
4395 owner, a member of the executive board, or an officer, employee,
4396 or authorized agent of the association unless the disclosure is
4397 consented to by the person to whom the information relates,
4398 except as otherwise required by law or court order;
4399 5. Impeded or otherwise interfered with an investigation of
4400 the division by:
4401 a. Failing to comply with a request by the division to
4402 provide information or documents;
4403 b. Supplying false or misleading information to an
4404 investigator, auditor, or any other officer or agent of the
4405 division; or
4406 c. Concealing any facts or documents relating to the
4407 business of the association;
4408 6. Kept informed of laws, regulations, and developments
4409 relating to common interest communities;
4410 7. Cooperated with the division in resolving complaints
4411 filed with the division; and
4412 8. Caused the association to:
4413 a. Comply with all applicable federal, state, and local
4414 laws and regulations and the governing documents of the
4415 association;
4416 b. Uniformly enforce the governing documents of the
4417 association;
4418 c. Hold meetings of the board with such frequency as to
4419 properly and efficiently address the affairs of the association;
4420 d. Obtain, when practicable, at least three bids from
4421 reputable service providers who possess the proper licensing
4422 before purchasing any service for use by the association;
4423 e. Consult with appropriate professionals as necessary
4424 before making any major decision affecting the association or
4425 the common elements;
4426 f. Deposit all funds of the association for investment in
4427 government securities that are backed by the full faith and
4428 credit of the United States or in a financial institution, only
4429 if such funds do not exceed the institution’s insured amount,
4430 whose accounts are insured by the Federal Deposit Insurance
4431 Corporation, the National Credit Union Share Insurance Fund, or
4432 the Securities Investor Protection Corporation;
4433 g. Maintain current, accurate, and properly documented
4434 financial records;
4435 h. Establish policies and procedures for the disclosure of
4436 potential conflicts of interest and the appropriate manner by
4437 which to resolve such conflicts;
4438 i. Establish policies and procedures that are designed to
4439 provide reasonable assurances in the reliability of financial
4440 reporting, including, without limitation, proper maintenance of
4441 accounting records, documentation of the authorization for
4442 receipts and disbursements, verification of the integrity of the
4443 data used in making business decisions, facilitation of fraud
4444 detection and prevention, and compliance with the applicable
4445 laws and regulations governing financial records;
4446 j. Prepare interim and annual financial statements that
4447 will allow the division, the board, the unit owners, and an
4448 accountant or auditor to determine whether the financial
4449 position of the association is fairly presented in accordance
4450 with good business practices;
4451 k. Make the financial records of the association available
4452 for inspection by the division in accordance with the applicable
4453 laws and regulations of the state;
4454 l. Cooperate with the division in resolving complaints
4455 filed with the division; and
4456 m. Adopt and fairly enforce the collection policies and
4457 operating policies of the association.
4458 (3) OPTIONAL PROVISIONS.—The bylaws as originally recorded
4459 or as amended under the procedures provided therein may provide
4460 for the following:
4461 (a) A method of adopting and amending administrative rules
4462 and regulations governing the details of the operation and use
4463 of the common elements which may not be implemented before
4464 publication and disbursement of such method to all members and
4465 residents.
4466 (b) Restrictions on and requirements for the use,
4467 maintenance, and appearance of the units and the use of the
4468 common elements.
4469 (c) Provisions for giving notice by electronic transmission
4470 in a manner authorized by law of meetings of the board of
4471 directors and committees and of annual and special meetings of
4472 the members.
4473 (d) Other provisions which are not inconsistent with this
4474 chapter or with the documents declaration, as may be desired.
4475 Section 59. Section 718.1124, Florida Statutes, is amended
4476 to read:
4477 718.1124 Failure to fill vacancies on board of
4478 administration sufficient to constitute a quorum; appointment of
4479 receiver upon petition of unit owner.—
4480 (1) If an association fails to fill vacancies on the board
4481 of administration sufficient to constitute a quorum in
4482 accordance with the bylaws, any unit owner may give notice of
4483 his or her intent to apply to the circuit court within whose
4484 jurisdiction the common interest community condominium lies for
4485 the appointment of a receiver to manage the affairs of the
4486 association. The form of the notice shall be as follows:
4487
4488 NOTICE OF INTENT TO
4489 APPLY FOR RECEIVERSHIP
4490
4491 YOU ARE HEREBY NOTIFIED that the undersigned owner of
4492 a common interest community condominium unit in
4493 ...(name of common interest community condominium)...
4494 intends to file a petition in the circuit court for
4495 appointment of a receiver to manage the affairs of the
4496 association on the grounds that the association has
4497 failed to fill vacancies on the board of
4498 administration sufficient to constitute a quorum. This
4499 petition will not be filed if the vacancies are filled
4500 within 30 days after the date on which this notice was
4501 sent or posted, whichever is later. If a receiver is
4502 appointed, the receiver shall have all of the powers
4503 of the board and shall be entitled to receive a salary
4504 and reimbursement of all costs and attorney attorney’s
4505 fees payable from association funds.
4506
4507 ...(name and address of petitioning unit owner)...
4508
4509 (2) The notice required by subsection (1) must be provided
4510 by the unit owner to the association by certified mail or
4511 personal delivery, must be posted in a conspicuous place on the
4512 common interest community condominium property, and must be
4513 provided by the unit owner to every other unit owner of the
4514 association by certified mail or personal delivery. The notice
4515 must be posted and mailed, electronically transmitted, or hand
4516 delivered at least 30 days before prior to the filing of a
4517 petition seeking receivership. Notice by mail to a unit owner
4518 shall be sent to the address used by the county property
4519 appraiser for notice to the unit owner, except that where a unit
4520 owner’s address is not publicly available the notice shall be
4521 mailed to the unit.
4522 (3) If the association fails to fill the vacancies within
4523 30 days after the notice required by subsection (1) is posted
4524 and mailed or delivered, the unit owner may proceed with the
4525 petition.
4526 (4) If a receiver is appointed, all unit owners shall be
4527 given written notice of such appointment as provided in s.
4528 718.127.
4529 (5) The association shall be responsible for the salary of
4530 the receiver, court costs, and attorney attorney’s fees. The
4531 receiver shall have all powers and duties of a duly constituted
4532 board of administration and shall serve until the association
4533 fills vacancies on the board sufficient to constitute a quorum
4534 and the court relieves the receiver of the appointment.
4535 Section 60. Section 718.113, Florida Statutes, is amended
4536 to read:
4537 718.113 Maintenance; limitation upon improvement; display
4538 of flag; hurricane shutters and protection; display of spiritual
4539 religious decorations; access ramps; decals; xeriscape; mold.—
4540 (1) Maintenance of the common elements is the
4541 responsibility of the association. The documents declaration may
4542 provide that certain limited common elements shall be maintained
4543 by those entitled to use the limited common elements or that the
4544 association shall provide the maintenance, either as a common
4545 expense or with the cost shared only by those entitled to use
4546 the limited common elements. If the maintenance is to be by the
4547 association at the expense of only those entitled to use the
4548 limited common elements, the documents declaration shall
4549 describe in detail the method of apportioning such costs among
4550 those entitled to use the limited common elements, and the
4551 association may use the provisions of s. 718.116 to enforce
4552 payment of the shares of such costs by the unit owners entitled
4553 to use the limited common elements.
4554 (2)(a) Except as otherwise provided in this section, there
4555 shall be no material alteration or substantial additions to the
4556 common elements or to real property that is association
4557 property, common interest community property, or multi-common
4558 interest community property except in a manner provided in an
4559 amendment to the documents which is association property, except
4560 in a manner provided in the declaration as originally recorded
4561 or as amended under the procedures provided therein. If the
4562 declaration as originally recorded or as amended under the
4563 procedures provided therein does not specify the procedure for
4564 approval of material alterations or substantial additions, 75
4565 percent of the total voting interests of the association must
4566 approve the alterations or additions. This paragraph is intended
4567 to clarify existing law and applies to associations existing on
4568 October 1, 2008.
4569 (b) There shall not be any material alteration of, or
4570 substantial addition to, the common elements of any condominium
4571 operated by a multicondominium association unless approved in
4572 the manner provided in the declaration of the affected
4573 condominium or condominiums as originally recorded or as amended
4574 under the procedures provided therein. If a declaration as
4575 originally recorded or as amended under the procedures provided
4576 therein does not specify a procedure for approving such an
4577 alteration or addition, the approval of 75 percent of the total
4578 voting interests of each affected condominium is required. This
4579 subsection does not prohibit a provision in any declaration,
4580 articles of incorporation, or bylaws as originally recorded or
4581 as amended under the procedures provided therein requiring the
4582 approval of unit owners in any condominium operated by the same
4583 association or requiring board approval before a material
4584 alteration or substantial addition to the common elements is
4585 permitted. This paragraph is intended to clarify existing law
4586 and applies to associations existing on the effective date of
4587 this act.
4588 (c) There shall not be any material alteration or
4589 substantial addition made to association real property operated
4590 by a multicondominium association, except as provided in the
4591 declaration, articles of incorporation, or bylaws as originally
4592 recorded or as amended under the procedures provided therein. If
4593 the declaration, articles of incorporation, or bylaws as
4594 originally recorded or as amended under the procedures provided
4595 therein do not specify the procedure for approving an alteration
4596 or addition to association real property, the approval of 75
4597 percent of the total voting interests of the association is
4598 required. This paragraph is intended to clarify existing law and
4599 applies to associations existing on the effective date of this
4600 act.
4601 (3) A unit owner shall not do anything within his or her
4602 unit or on the common elements which would adversely affect the
4603 safety or soundness of the common elements or any portion of the
4604 association property or common interest community condominium
4605 property which is to be maintained by the association.
4606 (4) Any unit owner may display one portable, removable
4607 United States flag in a respectful way and, on Armed Forces Day,
4608 Memorial Day, Flag Day, Independence Day, and Veterans Day, may
4609 display in a respectful way portable, removable official flags,
4610 not larger than 4 1/2 feet by 6 feet, that represent the United
4611 States Army, Navy, Air Force, Marine Corps, or Coast Guard,
4612 regardless of any declaration rules or requirements dealing with
4613 flags or decorations. The flag must be equal in size or smaller
4614 than the United States flag. An owner may erect a freestanding
4615 flagpole on property not owned or maintained by the common
4616 interest community which is no more than 20 feet high on any
4617 portion of his or her real property if the flagpole does not
4618 obstruct sightlines at intersections and is not erected within
4619 or upon an easement. If a flagpole is installed on property
4620 maintained by the association, reasonable accommodations shall
4621 be adopted to allow display of the flag.
4622 (5) Each board of administration of a residential common
4623 interest community condominium shall adopt building opening
4624 hurricane protection shutter specifications for each building
4625 within each common interest community condominium operated by
4626 the association which shall include color, style, and other
4627 factors deemed relevant by the board. All specifications adopted
4628 by the board must comply with or exceed the applicable building
4629 code.
4630 (a) The board may, subject to s. 718.3026 and the approval
4631 of a majority of voting interests of the residential common
4632 interest community condominium, install building opening
4633 hurricane shutters, impact glass, code-compliant windows or
4634 doors, or other types of code-compliant hurricane protection
4635 that complies comply with or exceeds exceed the applicable
4636 building code. However, a vote of the owners is not required if
4637 the maintenance, repair, and replacement of building opening
4638 hurricane shutters, impact glass, code-compliant windows or
4639 doors, or other types of code-compliant hurricane protection is
4640 are the responsibility of the association pursuant to the
4641 declaration of common interest community condominium. If
4642 hurricane protection or laminated glass or window film
4643 architecturally designed to function as hurricane protection
4644 that complies with or exceeds the current applicable building
4645 code has been previously installed, the board may not install
4646 additional hurricane shutters, impact glass, code-compliant
4647 windows or doors, or other types of code-compliant hurricane
4648 protection except upon approval by a majority vote of the owners
4649 at a duly called meeting voting interests.
4650 (b) The association is responsible for the maintenance,
4651 repair, and replacement of the building opening hurricane
4652 shutters, impact glass, code-compliant windows or doors, or
4653 other types of code-compliant hurricane protection authorized by
4654 this subsection if such protection property is the
4655 responsibility of the association pursuant to the documents
4656 declaration of condominium. If the building opening hurricane
4657 shutters, impact glass, code-compliant windows or doors, or
4658 other types of code-compliant hurricane protection authorized by
4659 this subsection is are the responsibility of the unit owners
4660 pursuant to the documents declaration of condominium, the
4661 maintenance, repair, and replacement of such items are the
4662 responsibility of the unit owner.
4663 (c) The board may operate shutters, impact glass, code
4664 compliant windows or doors, or other types of code-compliant
4665 hurricane protection installed pursuant to this subsection
4666 without permission of the unit owners only if such operation is
4667 necessary to preserve and protect the common interest community
4668 condominium property and association property. The installation,
4669 replacement, operation, repair, and maintenance of such
4670 shutters, impact glass, code-compliant windows or doors, or
4671 other types of code-compliant hurricane protection in accordance
4672 with the procedures set forth in this paragraph are not a
4673 material alteration to the common elements or association
4674 property within the meaning of this section.
4675 (d) Notwithstanding any other provision in the residential
4676 common interest community condominium documents, if approval is
4677 required by the documents, a board may not refuse to approve the
4678 installation or replacement of hurricane shutters, impact glass,
4679 code-compliant windows or doors, or other types of code
4680 compliant hurricane protection by a unit owner conforming to the
4681 specifications adopted by the board.
4682 (e) A prohibition of use of hurricane shutters may not be
4683 enforced by the association unless the association also accepts
4684 the responsibility to install or operate such shutters at the
4685 time of a hurricane warning to protect the property.
4686 (6) An association may not refuse the request of a unit
4687 owner for a reasonable accommodation for the attachment on the
4688 mantel or frame of the door of the unit owner of a spiritual
4689 religious object not to exceed 3 inches wide, 6 inches high, and
4690 1.5 inches deep.
4691 (7) Notwithstanding the provisions of this section or the
4692 governing documents of a common interest community condominium
4693 or a multi-common interest community multicondominium
4694 association, the board of administration may, without any
4695 requirement for approval of the unit owners, install upon or
4696 within the common elements or association property solar
4697 collectors, clotheslines, or other energy-efficient devices
4698 based on renewable resources for the benefit of the unit owners.
4699 (8)(a) Any parcel owner may construct an access ramp if a
4700 resident or occupant of the parcel has a medical necessity or
4701 disability that requires a ramp for egress and ingress under the
4702 following conditions:
4703 1. The ramp must be as unobtrusive as possible, be designed
4704 to blend in as aesthetically as practicable, and be reasonably
4705 sized to fit the intended use without obstructing ingress or
4706 egress for any other person.
4707 2. Plans for the ramp must be submitted to the association
4708 before it is installed and the association may make reasonable
4709 requests to modify the design to achieve architectural
4710 consistency with surrounding structures and surfaces.
4711 (b) The parcel owner must submit to the association an
4712 affidavit from a physician attesting to the medical necessity or
4713 disability of the resident or occupant of the parcel requiring
4714 the access ramp. Certification used for s. 320.0848 shall be
4715 sufficient to meet the affidavit requirement.
4716 (c) Costs for installation, removal, and renovation of the
4717 property to its original condition are the responsibility of the
4718 owner.
4719 (9) An owner may display a sign or window decal of
4720 reasonable size provided by a contractor for security services
4721 within 10 feet of any entrance to the home as long as it is not
4722 on common interest community property.
4723 (10) An association may not restrict, prohibit, or limit
4724 xeriscape; prohibit or limit the installation or use of drought
4725 tolerant vegetative landscapes; or require cultivated vegetation
4726 to consist exclusively or primarily of turf grass on property
4727 that is the responsibility of the unit owner to maintain. Any
4728 such restriction is contrary to public policy and, therefore,
4729 the section of the documents which includes such restriction
4730 shall be unenforceable and not a material alteration to the
4731 common elements or association property within the meaning of
4732 this section.
4733 (11) An association responsible for landscape installation
4734 and maintenance on common property may, by amending the
4735 documents, provide for xeriscape and the use of drought-tolerant
4736 vegetative landscapes. The association may replace cultivated
4737 vegetation consisting exclusively or primarily of turf grass on
4738 property that is the responsibility of the association to
4739 maintain. Any such restriction is contrary to public policy and,
4740 therefore, the section of the documents which includes such
4741 restriction is unenforceable and not a material alteration to
4742 the common elements or association property within the meaning
4743 of this section.
4744 (12)(a) The prevention of mold and mildew in proximity to
4745 the unit is the unit owner’s responsibility through proper
4746 inspection and maintenance of the unit.
4747 (b) The association is not responsible for the prevention
4748 of mold and mildew or any damages, including, but not limited
4749 to, any special or consequential damages, property damages,
4750 personal injury, loss of income, emotional distress, death, loss
4751 of use, loss of income, diminution or loss of value of the unit,
4752 economic damages, or adverse health effects relating to, arising
4753 from, or caused by mold and mildew accumulation regardless of
4754 the cause of the mold or mildew.
4755 (c) A unit owner, by virtue of his or her acceptance of
4756 title to the unit, and each other person having an interest in
4757 or lien upon, or making any use of, any portion of the common
4758 interest community property by virtue of accepting such interest
4759 or making such uses is bound by this subsection and shall be
4760 deemed to have automatically waived any and all claims,
4761 obligations, demands, damages, causes of action, liabilities,
4762 losses, and expenses, whether now known or hereafter known,
4763 foreseen or unforeseen, that the unit owner has, or may have in
4764 the future, in law or in equity arising out of, relating to, or
4765 in any way connected with indoor air quality, moisture, or the
4766 growth, release, discharge, dispersal, or presence of mold or
4767 mildew or any chemical or toxin secreted therefrom.
4768 Section 61. Section 718.114, Florida Statutes, is amended
4769 to read:
4770 718.114 Association powers.—
4771 (1) An association may enter into agreements to acquire
4772 leaseholds, memberships, and other possessory or use interests
4773 in lands or facilities such as country clubs, golf courses,
4774 marinas, and other recreational facilities, regardless of
4775 whether the lands or facilities are contiguous to the lands of
4776 the common interest community condominium, if such lands and
4777 facilities are intended to provide enjoyment, recreation, or
4778 other use or benefit to the unit owners.
4779 (2) All of these leaseholds, memberships, and other
4780 possessory or use interests existing or created at the time of
4781 recording the declaration must be stated and fully described in
4782 the declaration.
4783 (3) Subsequent to the recording of the declaration,
4784 agreements acquiring these leaseholds, memberships, or other
4785 possessory or use interests which are not entered into within 12
4786 months after of the date of the recording of documents the
4787 certificate of a surveyor and mapper pursuant to s.
4788 718.104(4)(e) or the recording of an instrument that transfers
4789 title to a unit in the condominium which is not accompanied by a
4790 recorded assignment of developer rights in favor of the grantee
4791 of such unit, whichever occurs first, are a material alteration
4792 or substantial addition to the real property that is association
4793 property, and the association may not acquire or enter into such
4794 agreements except upon a vote of, or written consent by, a
4795 majority of the total voting interests or as authorized by the
4796 declaration as provided in s. 718.113.
4797 (4) The documents declaration may provide that the rental,
4798 membership fees, operations, replacements, and other expenses
4799 are common expenses and may impose covenants and restrictions
4800 concerning their use and may contain other provisions not
4801 inconsistent with this chapter.
4802 (5) Mandatory membership or other possessory or use rights
4803 may only be enforced upon membership-owned facilities.
4804 (6) A common interest community condominium association may
4805 conduct bingo games as provided in s. 849.0931.
4806 Section 62. Section 718.115, Florida Statutes, is amended
4807 to read:
4808 718.115 Common expenses and common surplus.—
4809 (1)(a) Common expenses include the expenses of the
4810 operation, maintenance, repair, replacement, or protection of
4811 the common elements and association property, costs of carrying
4812 out the responsibilities powers and duties of the association,
4813 and any other expense, whether or not included in the foregoing,
4814 designated as common expense by this chapter, the governing
4815 documents declaration, the documents creating the association,
4816 or the bylaws.
4817 (1) Common expenses also include reasonable transportation
4818 services, insurance for directors and officers, road maintenance
4819 and operation expenses, in-house communications, and security
4820 services, which are reasonably related to the general benefit of
4821 the unit owners even if such expenses do not attach to the
4822 common elements or property of the common interest community
4823 condominium.
4824 (2) However, such common expenses must either have been
4825 services or items provided on or after the date control of the
4826 association is transferred from the developer to the unit owners
4827 or must be services or items provided for in the common interest
4828 community condominium documents or bylaws.
4829 (3) Unless the manner of payment or allocation of expenses
4830 is otherwise addressed in the documents declaration of
4831 condominium, the expenses of any items or services required by
4832 any federal, state, or local governmental entity to be
4833 installed, maintained, or supplied to the common interest
4834 community condominium property by the association, including,
4835 but not limited to, firesafety equipment or water and sewer
4836 service where a master meter serves the common interest
4837 community condominium, shall be common expenses as provided in
4838 subsection (4), regardless of whether or not such items or
4839 services are specifically identified as common expenses in the
4840 documents declaration of condominium, articles of incorporation,
4841 or bylaws of the association.
4842 (4) In a common interest community where water service is
4843 provided through a master meter serving the common interest
4844 community, if the board determines water usage per unit,
4845 compared to similar common interest communities with individual
4846 meters, is excessive, individual meters may be installed at the
4847 common interest community. The installation of meters may be by
4848 the utility company serving the common interest community or
4849 sub-meters may be installed by the common interest community and
4850 the common interest community shall bill each unit at least
4851 quarterly for the usage based on the actual cost per gallon of
4852 water and sewer service billed by the utility. Such meters may
4853 not be considered material alterations or a change in the
4854 allocation of common expenses.
4855 (5) The common expenses of a common interest community
4856 within a multi-common interest community are the common expenses
4857 directly attributable to the operation of that common interest
4858 community.
4859 (b) The common expenses of a condominium within a
4860 multicondominium are the common expenses directly attributable
4861 to the operation of that condominium. The common expenses of the
4862 a multicondominium association do not include the common
4863 expenses directly attributable to the operation of any specific
4864 multi-common interest community, common interest community, or
4865 common interest communities within the multi-common interest
4866 community condominium or condominiums within the
4867 multicondominium. This paragraph is intended to clarify existing
4868 law and applies to associations existing on the effective date
4869 of this act.
4870 (6)(c) The common expenses of a multi-common interest
4871 community multicondominium association may include categories of
4872 expenses related to the property or common elements within a
4873 specific common interest community condominium in the multi
4874 common interest community multicondominium if such property or
4875 common elements are areas in which all members of the multi
4876 common interest community multicondominium association have use
4877 rights or from which all members receive tangible economic
4878 benefits. Such common expenses of the association shall be
4879 identified in the documents declaration or bylaws as originally
4880 recorded or as amended under the procedures provided therein of
4881 each common interest community condominium within the multi
4882 common interest community multicondominium association. This
4883 paragraph is intended to clarify existing law and applies to
4884 associations existing on the effective date of this act.
4885 (7)(d) If provided in the documents declaration, the cost
4886 of a master antenna system communications services as defined in
4887 chapter 202, information services, or duly franchised cable
4888 service Internet services obtained pursuant to a bulk contract
4889 is a common expense. If the documents do declaration does not
4890 provide for the cost of a master antenna system or duly
4891 franchised cable service obtained under a bulk contract such
4892 services as a common expense, the board may enter into such a
4893 contract, and the cost of the service will be a common expense
4894 but. The cost for the services under a bulk rate contract may be
4895 allocated on a per-unit basis rather than a percentage basis if
4896 the documents provide declaration provides for other than an
4897 equal sharing of common expenses, and any contract entered into
4898 before July 1, 2016 1998, in which the cost of the service is
4899 not equally divided among all unit owners, may be changed by
4900 vote of a majority of the voting interests present at a regular
4901 or special meeting of the association, to allocate the cost
4902 equally among all units. The contract shall must be for a term
4903 of at least 2 years.
4904 (a)1. Any contract made by the board on or after July 1,
4905 2016 1998, for a community antenna system or duly franchised
4906 cable service may be canceled by a majority of the voting
4907 interests present at the next regular or special meeting of the
4908 association. The question shall be included on the limited proxy
4909 for the meeting and a copy of the contract shall be included
4910 with the information for the meeting. If the question Any member
4911 may make a motion to cancel the contract, but if no motion is
4912 made or if such motion fails to obtain the required majority at
4913 the next regular or special meeting, whichever occurs first,
4914 following the making of the contract, such contract shall be
4915 deemed ratified for the term therein expressed.
4916 (b)2. Any such contract shall must provide, and is deemed
4917 to provide if not expressly set forth, that any hearing-impaired
4918 or legally blind unit owner who does not occupy the unit with a
4919 non-hearing-impaired or sighted person, or any unit owner
4920 receiving supplemental security income under Title XVI of the
4921 Social Security Act or food stamps assistance as administered by
4922 the Department of Children and Families pursuant to s. 414.31,
4923 may discontinue the cable or video service without incurring
4924 disconnect fees, penalties, or subsequent service charges, and,
4925 as to such units, the owners are not required to pay any common
4926 expenses charge related to such service and that amount shall be
4927 deducted from the amount of the payment required to be made to
4928 the service provider. If fewer than all members of an
4929 association share the expenses of cable or video service, the
4930 expense shall be shared equally by all participating unit
4931 owners. The association may use the provisions of s. 718.116 to
4932 enforce payment of the shares of such costs by the unit owners
4933 receiving cable or video service. If a unit owner is in default
4934 of payment of regular assessments for more than 60 days, the
4935 service provider, upon request by the association, shall
4936 terminate the service to the unit without charge to the
4937 association and adjust the payment due to the service provider
4938 to remove the relevant charge. Any charge to reconnect services
4939 shall be at the expense of the unit owner.
4940 (8)(e) The expense of installation, replacement, operation,
4941 repair, and maintenance of building opening hurricane shutters,
4942 impact glass, code-compliant windows or doors, or other types of
4943 code-compliant hurricane protection by the board pursuant to s.
4944 718.113(5) constitutes a common expense and shall be collected
4945 as provided in this section if the association is responsible
4946 for the maintenance, repair, and replacement of the building
4947 opening hurricane shutters, impact glass, code-compliant windows
4948 or doors, or other types of code-compliant hurricane protection
4949 pursuant to the documents of the common interest community
4950 declaration of condominium.
4951 (a) However, if the maintenance, repair, and replacement of
4952 the hurricane protection is shutters, impact glass, code
4953 compliant windows or doors, or other types of code-compliant
4954 hurricane protection are the responsibility of the unit owners
4955 pursuant to the documents of the common interest community
4956 declaration of condominium, the cost of the installation of the
4957 hurricane shutters, impact glass, code-compliant windows or
4958 doors, or other types of code-compliant hurricane protection is
4959 not a common expense and shall be charged individually to the
4960 unit owners based on the cost of installation of the hurricane
4961 shutters, impact glass, code-compliant windows or doors, or
4962 other types of code-compliant hurricane protection appurtenant
4963 to the unit.
4964 (b) Notwithstanding s. 718.116(10) 718.116(9), and
4965 regardless of whether or not the documents require declaration
4966 requires the association or unit owners to maintain, repair, or
4967 replace hurricane shutters, impact glass, code-compliant windows
4968 or doors, or other types of code-compliant hurricane protection,
4969 a unit owner who has previously installed hurricane protection
4970 shutters in accordance with s. 718.113(5) that comply with the
4971 current applicable building code shall receive a credit when the
4972 shutters are installed; a unit owner who has previously
4973 installed impact glass or code-compliant windows or doors that
4974 comply with the current applicable building code shall receive a
4975 credit when the impact glass or code-compliant windows or doors
4976 are installed; and a unit owner who has installed other types of
4977 code-compliant hurricane protection that comply with the current
4978 applicable building code shall receive a credit when the same
4979 type of other code-compliant hurricane protection is installed,
4980 and the credit shall be equal to the pro rata portion of the
4981 assessed installation cost assigned to each unit.
4982 (c) However, such unit owner remains responsible for the
4983 pro rata share of expenses for hurricane shutters, impact glass,
4984 code-compliant windows or doors, or other types of code
4985 compliant hurricane protection installed on common elements and
4986 association property by the board pursuant to s. 718.113(5) and
4987 remains responsible for a pro rata share of the expense of the
4988 replacement, operation, repair, and maintenance of such
4989 shutters, impact glass, code-compliant windows or doors, or
4990 other types of code-compliant hurricane protection.
4991 (9) If common expenses are based on the size of the unit,
4992 any other charges that are considered common expenses but are
4993 not attributable to the size of the unit shall be allocated to
4994 the units on a per-unit basis and not prorated by any regular or
4995 special assessment allocation based on the unit’s size. The
4996 division shall by rule determine what expenses shall be included
4997 under this subsection.
4998 (f) Common expenses include the costs of insurance acquired
4999 by the association under the authority of s. 718.111(11),
5000 including costs and contingent expenses required to participate
5001 in a self-insurance fund authorized and approved pursuant to s.
5002 624.462.
5003 (g) If any unpaid share of common expenses or assessments
5004 is extinguished by foreclosure of a superior lien or by a deed
5005 in lieu of foreclosure thereof, the unpaid share of common
5006 expenses or assessments are common expenses collectible from all
5007 the unit owners in the condominium in which the unit is located.
5008 (10)(2) Except as otherwise provided by this chapter, funds
5009 for payment of the common expenses of a common interest
5010 community condominium shall be collected by assessments against
5011 the units in that common interest community condominium in the
5012 proportions or percentages provided in that common interest
5013 community’s documents condominium’s declaration. In a
5014 residential condominium, or mixed-use condominium created after
5015 January 1, 1996, Each unit’s share of the common expenses of the
5016 common interest community condominium and common surplus of the
5017 common interest community condominium shall be the same as the
5018 unit’s appurtenant ownership interest in the common elements.
5019 (3) Common surplus is owned by unit owners in the same
5020 shares as their ownership interest in the common elements.
5021 (11)(4)(a) Funds for payment of the common expenses of a
5022 common interest community condominium within a multi-common
5023 interest community multicondominium shall be collected as
5024 provided in subsection (10)(2). Common expenses of a multi
5025 common interest community multicondominium association shall be
5026 funded by assessments against all unit owners in the association
5027 in the proportion or percentage set forth in the declaration or
5028 documents as required by s. 718.104(6)(l), 718.104(4)(h) or s.
5029 718.110(12), or subsections (1) and (2), as applicable.
5030 (b) In a multi-common interest community multicondominium
5031 association, the total common surplus owned by a unit owner
5032 consists of that owner’s share of the common surplus of the
5033 association plus that owner’s share of the common surplus of the
5034 common interest community condominium in which the owner’s unit
5035 is located, in the proportion or percentage set forth in the
5036 declaration or documents as required by s. 718.104(6)(l),
5037 718.104(4)(h) or s. 718.110(12), or subsections (1) and (2), as
5038 applicable.
5039 Section 63. Section 718.116, Florida Statutes, is amended
5040 to read:
5041 718.116 Assessments; liability; lien and priority;
5042 interest; collection.—
5043 (1)(a) A unit owner, regardless of how his or her title has
5044 been acquired, including by purchase at a foreclosure sale or by
5045 deed in lieu of foreclosure, is liable for all assessments that
5046 which come due during ownership while he or she is the unit
5047 owner. Additionally, a unit owner is jointly and severally
5048 liable with the previous owner for all unpaid assessments and
5049 costs that came due up to the time of transfer of title. This
5050 liability is without prejudice to any right the owner may have
5051 to recover from the previous owner the amounts paid by the
5052 owner. For the purposes of this paragraph, the term “previous
5053 owner” does not include an association that acquires title to a
5054 delinquent property through foreclosure or by deed in lieu of
5055 foreclosure. A present unit owner’s liability for unpaid
5056 assessments is limited to any unpaid assessments that accrued
5057 before the association acquired title to the delinquent property
5058 through foreclosure or by deed in lieu of foreclosure.
5059 (b)1. The person acquiring title shall pay the amount owed
5060 to the association within 30 days after transfer of title.
5061 Failure to pay the full amount when due entitles the association
5062 to record a claim of lien and proceed in the same manner as
5063 provided in this section for the collection of unpaid
5064 assessments.
5065 (c) Notwithstanding the provisions of chapter 48, the
5066 association is a proper party to intervene in any foreclosure
5067 proceeding to seek equitable relief. liability of a first
5068 mortgagee or its successor or assignees who acquire title to a
5069 unit by foreclosure or by deed in lieu of foreclosure for the
5070 unpaid assessments that became due before the mortgagee’s
5071 acquisition of title is limited to the lesser of:
5072 a. The unit’s unpaid common expenses and regular periodic
5073 assessments which accrued or came due during the 12 months
5074 immediately preceding the acquisition of title and for which
5075 payment in full has not been received by the association; or
5076 b. One percent of the original mortgage debt. The
5077 provisions of this paragraph apply only if the first mortgagee
5078 joined the association as a defendant in the foreclosure action.
5079 Joinder of the association is not required if, on the date the
5080 complaint is filed, the association was dissolved or did not
5081 maintain an office or agent for service of process at a location
5082 which was known to or reasonably discoverable by the mortgagee.
5083 (2)2. An association, or its successor or assignee, that
5084 acquires title to a unit through the foreclosure of its lien for
5085 assessments is not liable for any unpaid assessments, late fees,
5086 interest, or reasonable attorney attorney’s fees and costs that
5087 came due before the association’s acquisition of title in favor
5088 of any other association, as defined in s. 718.103(2) or s.
5089 720.301(9), which holds a superior lien interest on the unit.
5090 This subsection subparagraph is intended to clarify existing
5091 law.
5092 (c) The person acquiring title shall pay the amount owed to
5093 the association within 30 days after transfer of title. Failure
5094 to pay the full amount when due shall entitle the association to
5095 record a claim of lien against the parcel and proceed in the
5096 same manner as provided in this section for the collection of
5097 unpaid assessments.
5098 (d) With respect to each timeshare unit, each owner of a
5099 timeshare estate therein is jointly and severally liable for the
5100 payment of all assessments and other charges levied against or
5101 with respect to that unit pursuant to the declaration or bylaws,
5102 except to the extent that the declaration or bylaws may provide
5103 to the contrary.
5104 (e) Notwithstanding the provisions of paragraph (b), a
5105 first mortgagee or its successor or assignees who acquire title
5106 to a condominium unit as a result of the foreclosure of the
5107 mortgage or by deed in lieu of foreclosure of the mortgage shall
5108 be exempt from liability for all unpaid assessments attributable
5109 to the parcel or chargeable to the previous owner which came due
5110 prior to acquisition of title if the first mortgage was recorded
5111 prior to April 1, 1992. If, however, the first mortgage was
5112 recorded on or after April 1, 1992, or on the date the mortgage
5113 was recorded, the declaration included language incorporating by
5114 reference future amendments to this chapter, the provisions of
5115 paragraph (b) shall apply.
5116 (f) The provisions of this subsection are intended to
5117 clarify existing law, and shall not be available in any case
5118 where the unpaid assessments sought to be recovered by the
5119 association are secured by a lien recorded prior to the
5120 recording of the mortgage. Notwithstanding the provisions of
5121 chapter 48, the association shall be a proper party to intervene
5122 in any foreclosure proceeding to seek equitable relief.
5123 (g) For purposes of this subsection, the term “successor or
5124 assignee” as used with respect to a first mortgagee includes
5125 only a subsequent holder of the first mortgage.
5126 (3)(2) The liability for assessments may not be avoided by
5127 waiver of the use or enjoyment of any common element or by
5128 abandonment of the unit for which the assessments are made.
5129 (4)(3) Assessments and installments on assessments which
5130 are not paid when due bear interest at the rate provided in the
5131 documents declaration, from the due date until paid. The rate
5132 may not exceed the rate allowed by law, and, if no rate is
5133 provided in the documents declaration, interest accrues at the
5134 rate of 18 percent per year. If not prohibited provided by the
5135 documents declaration or bylaws, the association may, in
5136 addition to such interest, charge an administrative late fee in
5137 addition to such interest in an amount not to exceed of up to
5138 the greater of $25 or 5 percent of each delinquent installment
5139 when for which the payment is late. Any payment received by an
5140 association must be applied first to any interest accrued by the
5141 association, then to any administrative late fee, then to any
5142 costs and reasonable costs for collection services for which the
5143 association has contracted against the unit owner, then to
5144 reasonable attorney fees incurred in collection, and then to the
5145 delinquent assessment. The foregoing is applicable
5146 notwithstanding s. 673.3111, any purported accord and
5147 satisfaction, or any restrictive endorsement, designation, or
5148 instruction placed on or accompanying a payment. The preceding
5149 sentence is intended to clarify existing law. A late fee is not
5150 subject to chapter 687 or s. 718.303(4).
5151 (5)(4) If the association is authorized by the declaration
5152 or bylaws to approve or disapprove a proposed lease of a unit,
5153 the grounds for disapproval may include, but are not limited to,
5154 a unit owner being delinquent in the payment of an assessment at
5155 the time approval is sought.
5156 (6)(5)(a) The association has a lien on each common
5157 interest community condominium parcel to secure the payment of
5158 assessments. Except as otherwise provided in subsection (1) and
5159 as set forth below, the lien is effective from and shall relate
5160 back to the recording of the original documents declaration of
5161 condominium, or, in the case of lien on a parcel located in a
5162 phase common interest community condominium, the last to occur
5163 of the recording of the original documents declaration or
5164 amendment thereto creating the parcel. However, as to first
5165 mortgages of record, the lien is effective from and after
5166 recording of a claim of lien in the public records of the county
5167 in which the condominium parcel is located. Nothing in this
5168 subsection shall be construed to bestow upon any lien, mortgage,
5169 or certified judgment of record on April 1, 1992, including the
5170 lien for unpaid assessments created herein, a priority which, by
5171 law, the lien, mortgage, or judgment did not have before that
5172 date.
5173 (a)(b) To be valid, a claim of lien must state the
5174 description of the common interest community condominium parcel,
5175 the name of the record owner, the name and address of the
5176 association, the amount due, and the due dates. It must be
5177 executed and acknowledged by an officer or authorized agent of
5178 the association. The lien is not effective 1 year after the
5179 claim of lien was recorded unless, within that time, an action
5180 to enforce the lien is commenced. The 1-year period is
5181 automatically extended for any length of time during which the
5182 association is prevented from filing a foreclosure action by an
5183 automatic stay resulting from a bankruptcy petition filed by the
5184 parcel owner or any other person claiming an interest in the
5185 parcel. The claim of lien secures all unpaid assessments that
5186 are due and that may accrue after the claim of lien is recorded
5187 and before through the entry of a certificate of title final
5188 judgment, as well as interest, administrative late fees, and all
5189 reasonable costs and attorney fees incurred by the association
5190 incident to the collection process. Upon payment in full, the
5191 person making the payment is entitled to a satisfaction of the
5192 lien.
5193 (b)(c) By recording a notice of contest of lien in
5194 substantially the following form, a unit owner or the unit
5195 owner’s agent or attorney may require the association to enforce
5196 a recorded claim of lien against his or her common interest
5197 community condominium parcel.:
5198 NOTICE OF CONTEST OF LIEN
5199 TO: ...(Name and address of association)... You are
5200 notified that the undersigned contests the claim of lien filed
5201 by you on ...., ...(year)..., and recorded in Official Records
5202 Book .... at Page ...., of the public records of .... County,
5203 Florida, and that the time within which you may file suit to
5204 enforce your lien is limited to 90 days from the date of service
5205 of this notice. Executed this .... day of ...., ...(year)....
5206 Signed: ...(Owner or Attorney)...
5207 After notice of contest of lien has been recorded, the clerk of
5208 the circuit court shall mail a copy of the recorded notice to
5209 the association by certified mail, return receipt requested, at
5210 the address shown in the claim of lien or most recent amendment
5211 to it and shall certify to the service on the face of the
5212 notice. Service is complete upon mailing. After service, the
5213 association has 90 days in which to file an action to enforce
5214 the lien; and, if the action is not filed within the 90-day
5215 period, the lien is void. However, the 90-day period shall be
5216 extended for any length of time during which the association is
5217 prevented from filing its action because of an automatic stay
5218 resulting from the filing of a bankruptcy petition by the unit
5219 owner or by any other person claiming an interest in the parcel.
5220 (c)(d) A release of lien must be filed within 10 days after
5221 the final payment. in substantially the following form:
5222 RELEASE OF LIEN
5223 The undersigned lienor, in consideration of the final payment in
5224 the amount of $...., hereby waives and releases its lien and
5225 right to claim a lien for unpaid assessments through ....,
5226 ...(year)..., recorded in the Official Records Book .... at Page
5227 ...., of the public records of .... County, Florida, for the
5228 following described real property:
5229 UNIT NO. .... OF ...(NAME OF CONDOMINIUM)..., A CONDOMINIUM AS
5230 SET FORTH IN THE DECLARATION OF CONDOMINIUM AND THE EXHIBITS
5231 ANNEXED THERETO AND FORMING A PART THEREOF, RECORDED IN OFFICIAL
5232 RECORDS BOOK ...., PAGE ...., OF THE PUBLIC RECORDS OF ....
5233 COUNTY, FLORIDA. THE ABOVE DESCRIPTION INCLUDES, BUT IS NOT
5234 LIMITED TO, ALL APPURTENANCES TO THE CONDOMINIUM UNIT ABOVE
5235 DESCRIBED, INCLUDING THE UNDIVIDED INTEREST IN THE COMMON
5236 ELEMENTS OF SAID CONDOMINIUM.
5237 ...(Signature of Authorized Agent)... ...(Signature of
5238 Witness)...
5239 ...(Print Name)... ...(Print Name)...
5240 ...(Signature of Witness)...
5241 ...(Print Name)...
5242 Sworn to (or affirmed) and subscribed before me this .... day of
5243 ...., ...(year)..., by ...(name of person making statement)....
5244 ...(Signature of Notary Public)...
5245 ...(Print, type, or stamp commissioned name of Notary Public)...
5246 Personally Known.... OR Produced.... as identification.
5247 (7)(6)(a) The association may bring an action in its name
5248 to foreclose a lien for assessments in the manner a mortgage of
5249 real property is foreclosed and may also bring an action to
5250 recover a money judgment, including in county court or small
5251 claims court, for the unpaid assessments without waiving any
5252 claim of lien. Any money judgment obtained shall continue to
5253 increase based on any additional assessments, fees, or costs
5254 reasonably expended or coming due until such judgment is paid in
5255 full. The association is entitled to recover its reasonable
5256 attorney attorney’s fees incurred in either a lien foreclosure
5257 action or an action to recover a money judgment for unpaid
5258 assessments.
5259 (a)(b) No foreclosure judgment may be entered until at
5260 least 30 days after the association gives written notice to the
5261 unit owner of its intention to foreclose its lien to collect the
5262 unpaid assessments. The notice must be in substantially the
5263 following form:
5264 DELINQUENT ASSESSMENT
5265 This letter is to inform you a Claim of Lien has been filed
5266 against your property because you have not paid the ...(type of
5267 assessment)... assessment to ...(name of association).... The
5268 association intends to foreclose the lien and collect the unpaid
5269 amount within 30 days of this letter being provided to you.
5270 You owe the interest accruing from ...(month/year)... to the
5271 present. As of the date of this letter, the total amount due
5272 with interest is $..... All costs of any action and interest
5273 from this day forward will also be charged to your account.
5274 Any questions concerning this matter should be directed to
5275 ...(insert name, addresses, and telephone numbers of association
5276 representative)....
5277 If this notice is not given at least 30 days before the
5278 foreclosure action is filed, and if the unpaid assessments,
5279 including those coming due after the claim of lien is recorded,
5280 are paid before the entry of a final judgment of foreclosure,
5281 the association shall not recover attorney attorney’s fees or
5282 costs. The notice must be given by delivery of a copy of it to
5283 the unit owner or by certified or registered mail, return
5284 receipt requested, addressed to the unit owner at his or her
5285 last known address; and, upon such mailing, the notice shall be
5286 deemed to have been given, and the court shall proceed with the
5287 foreclosure action and may award attorney attorney’s fees and
5288 costs as permitted by law. The notice requirements of this
5289 subsection are satisfied if the unit owner records a notice of
5290 contest of lien as provided in subsection (6)(5). The notice
5291 requirements of this subsection do not apply if an action to
5292 foreclose a mortgage on the common interest community
5293 condominium unit is pending before any court; if the rights of
5294 the association would be affected by such foreclosure; and if
5295 actual, constructive, or substitute service of process has been
5296 made on the unit owner.
5297 (b)(c) If the unit owner remains in possession of the unit
5298 after a foreclosure judgment has been entered, the court, in its
5299 discretion, may require the unit owner to pay a reasonable
5300 rental for the unit. If the unit is rented or leased during the
5301 pendency of the foreclosure action, the association is entitled
5302 to the appointment of a receiver to collect the rent. The
5303 expenses of the receiver shall be paid by the party that which
5304 does not prevail in the foreclosure action.
5305 (c)(d) The association may has the power to purchase the
5306 common interest community condominium parcel at the foreclosure
5307 sale and to hold, lease, mortgage, or convey it.
5308 (8)(7) A first mortgagee acquiring title to a common
5309 interest community condominium parcel as a result of
5310 foreclosure, or a deed in lieu of foreclosure, may not, during
5311 the period of its ownership of such parcel, whether or not such
5312 parcel is unoccupied, be excused from the payment of some or all
5313 of the common expenses coming due during the period of such
5314 ownership. It is the public policy of the state to prohibit the
5315 inclusion or enforcement of superiority of lien clauses in
5316 mortgage contracts or declarations for common interest
5317 communities and, therefore, such clauses are void. This
5318 subsection applies retroactively and is remedial in nature.
5319 (9)(8) Within 15 days after receiving a written request
5320 therefor from a unit owner or his or her designee, or a unit
5321 mortgagee or his or her designee, the association or its agent
5322 shall provide a certificate signed by an officer or agent of the
5323 association stating all assessments and other moneys owed to the
5324 association by the unit owner with respect to the common
5325 interest community condominium parcel.
5326 (a) Any person other than the owner who relies upon such
5327 certificate shall be protected thereby.
5328 (b) A summary proceeding pursuant to s. 51.011 may be
5329 brought to compel compliance with this subsection, and in any
5330 such action the prevailing party is entitled to recover
5331 reasonable attorney attorney’s fees.
5332 (c) Notwithstanding any limitation on transfer fees
5333 contained in s. 718.112(2)(j) 718.112(2)(i), the association or
5334 its authorized agent may charge a reasonable fee or the cost of
5335 attorney fees incurred for the preparation of the certificate.
5336 The amount of the fee must be included on the certificate.
5337 (d) The authority to charge a fee for the certificate shall
5338 be established by a written resolution adopted by the board or
5339 provided by a written management, bookkeeping, or retainer
5340 agreement maintenance contract and is payable upon the
5341 preparation of the certificate. If the certificate is requested
5342 in conjunction with the sale or mortgage of a unit, the contract
5343 or mortgage application must state that the fee is not
5344 refundable but the closing does not occur and no later than 30
5345 days after the closing date for which the certificate was sought
5346 the preparer receives a written request, accompanied by
5347 reasonable documentation, that the sale did not occur from a
5348 payor that is not the unit owner, the fee shall be refunded to
5349 that payor within 30 days after receipt of the request. The
5350 refund is the obligation of the unit owner, and the association
5351 may collect it from that owner in the same manner as an
5352 assessment as provided in this section.
5353 (10)(9)(a) A unit owner may not be excused from payment of
5354 the unit owner’s share of common expenses unless all other unit
5355 owners are likewise proportionately excluded from payment,
5356 except as provided in subsection (1) and in the following cases:
5357 1. If authorized by the documents declaration, a developer
5358 who is offering units for sale may elect to be excused from
5359 payment of assessments against those unsold units for a stated
5360 period of time after the documents are declaration is recorded.
5361 However, the developer must pay common expenses incurred during
5362 the such period which exceed regular periodic assessments
5363 against other unit owners in the same common interest community
5364 condominium. The stated period must terminate no later than the
5365 first day of the fourth calendar month following the month in
5366 which the first closing occurs of a purchase contract for a unit
5367 in that common interest community condominium. If a developer
5368 controlled association has maintained all insurance coverage
5369 required by s. 718.111(11)(a), common expenses incurred during
5370 the stated period resulting from a natural disaster or an act of
5371 God occurring during the stated period, which are not covered by
5372 proceeds from insurance maintained by the association, may be
5373 assessed against all unit owners owning units on the date of
5374 such natural disaster or act of God, and their respective
5375 successors and assigns, including the developer with respect to
5376 units owned by the developer. In the event of such an
5377 assessment, all units shall be assessed in accordance with s.
5378 718.115(10) 718.115(2).
5379 2. A developer who owns common interest community
5380 condominium units, and who is offering the units for sale, may
5381 be excused from payment of assessments against those unsold
5382 units for the period of time the developer has guaranteed to all
5383 buyers purchasers or other unit owners in the same common
5384 interest community condominium that assessments will not exceed
5385 a stated dollar amount and that the developer will pay any
5386 common expenses that exceed the guaranteed amount. Such
5387 guarantee may be stated in the purchase contract, documents
5388 declaration, prospectus, or written agreement between the
5389 developer and a majority of the unit owners other than the
5390 developer and may provide that, after the initial guarantee
5391 period, the developer may extend the guarantee for one or more
5392 stated periods. If a developer-controlled association has
5393 maintained all insurance coverage required by s. 718.111(11)(a),
5394 common expenses incurred during a guarantee period, as a result
5395 of a natural disaster or an act of God occurring during the same
5396 guarantee period, which are not covered by the proceeds from
5397 such insurance, may be assessed against all unit owners owning
5398 units on the date of such natural disaster or act of God, and
5399 their successors and assigns, including the developer with
5400 respect to units owned by the developer. Any such assessment
5401 shall be in accordance with s. 718.115(10) or (11) 718.115(2) or
5402 (4), as applicable.
5403 (b) If the purchase contract, documents declaration,
5404 prospectus, or written agreement between the developer and a
5405 majority of unit owners other than the developer provides for
5406 the developer to be excused from payment of assessments under
5407 paragraph (a), only regular periodic assessments for common
5408 expenses as provided for in the documents declaration and
5409 prospectus and disclosed in the estimated operating budget shall
5410 be used for payment of common expenses during any period in
5411 which the developer is excused. Accordingly, no funds that which
5412 are receivable from unit purchasers or unit owners and payable
5413 to the association, including capital contributions or startup
5414 funds collected from unit buyers purchasers at closing, may be
5415 used for payment of such common expenses.
5416 (c) If a developer of a multi-common interest community
5417 multicondominium is excused from payment of assessments under
5418 paragraph (a), the developer’s financial obligation to the
5419 multi-common interest community multicondominium association
5420 during any period in which the developer is excused from payment
5421 of assessments is as follows:
5422 1. The developer shall pay the common expenses of a common
5423 interest community condominium affected by a guarantee,
5424 including the funding of reserves as provided in the adopted
5425 annual budget of that common interest community condominium,
5426 which exceed the regular periodic assessments at the guaranteed
5427 level against all other unit owners within that common interest
5428 community condominium.
5429 2. The developer shall pay the common expenses of a multi
5430 common interest community multicondominium association,
5431 including the funding of reserves as provided in the adopted
5432 annual budget of the association, which are allocated to units
5433 within a common interest community condominium affected by a
5434 guarantee and which exceed the regular periodic assessments
5435 against all other unit owners within that common interest
5436 community condominium.
5437 (11)(10) The specific purpose or purposes of any special
5438 assessment, including any contingent special assessment levied
5439 in conjunction with the purchase of an insurance policy
5440 authorized by s. 718.111(11), approved in accordance with the
5441 common interest community condominium documents shall be set
5442 forth in a written notice of such assessment sent or delivered
5443 to each unit owner. The funds collected pursuant to a special
5444 assessment shall be used only for the specific purpose or
5445 purposes set forth in such notice. However, upon completion of
5446 such specific purpose or purposes, any excess funds will be
5447 considered common surplus, and may, at the discretion of the
5448 board, either be returned to the unit owners or applied as a
5449 credit toward future assessments.
5450 (12)(11)(a) If the unit is occupied by a tenant and the
5451 unit owner is delinquent in paying any monetary obligation due
5452 to the association, the association may make a written demand
5453 that the tenant pay to the association the subsequent rental
5454 payments and continue to make such payments until all monetary
5455 obligations of the unit owner related to the unit have been paid
5456 in full to the association. The tenant must pay the monetary
5457 obligations to the association until the association releases
5458 the tenant or the tenant discontinues tenancy in the unit.
5459 1. The association must provide the tenant a notice, by
5460 hand delivery or United States mail, in substantially the
5461 following form:
5462
5463 Pursuant to section 718.116(12) 718.116(11),
5464 Florida Statutes, the association demands that you pay
5465 your rent directly to the common interest community
5466 condominium association and continue doing so until
5467 the association notifies you otherwise.
5468 Payment due the common interest community
5469 condominium association may be in the same form as you
5470 paid your landlord and must be sent by United States
5471 mail or hand delivery to ...(full address)..., payable
5472 to ...(name)....
5473 Your obligation to pay your rent to the
5474 association begins immediately, unless you have
5475 already paid rent to your landlord for the current
5476 period before receiving this notice. In that case, you
5477 must provide the association written proof of your
5478 payment within 14 days after receiving this notice and
5479 your obligation to pay rent to the association would
5480 then begin with the next rental period.
5481 Pursuant to section 718.116(12) 718.116(11),
5482 Florida Statutes, your payment of rent to the
5483 association gives you complete immunity from any claim
5484 for the rent by your landlord for all amounts timely
5485 paid to the association.
5486
5487 2. The association must mail written notice to the unit
5488 owner of the association’s demand that the tenant make payments
5489 to the association.
5490 3. The association shall, upon request, provide the tenant
5491 with written receipts for payments made.
5492 4. A tenant is immune from any claim by the landlord or
5493 unit owner related to the rent timely paid to the association
5494 after the association has made written demand.
5495 (b) If the tenant paid rent to the landlord or unit owner
5496 for a given rental period before receiving the demand from the
5497 association and provides written evidence to the association of
5498 having paid the rent within 14 days after receiving the demand,
5499 the tenant shall begin making rental payments to the association
5500 for the following rental period and shall continue making rental
5501 payments to the association to be credited against the monetary
5502 obligations of the unit owner until the association releases the
5503 tenant or the tenant discontinues tenancy in the unit.
5504 (c) The liability of the tenant may not exceed the amount
5505 due from the tenant to the tenant’s landlord. The tenant’s
5506 landlord shall provide the tenant a credit against rents due to
5507 the landlord in the amount of moneys paid to the association.
5508 (d) The association may issue notice under s. 83.56 and sue
5509 for eviction under ss. 83.59-83.625 as if the association were a
5510 landlord under part II of chapter 83 if the tenant fails to pay
5511 a required payment to the association after written demand has
5512 been made to the tenant. However, the association is not
5513 otherwise considered a landlord under chapter 83 and
5514 specifically has no obligations under s. 83.51.
5515 (e) The tenant does not, by virtue of payment of monetary
5516 obligations to the association, have any of the rights of a unit
5517 owner to vote in any election or to examine the books and
5518 records of the association.
5519 (f) A court may supersede the effect of this subsection by
5520 appointing a receiver.
5521 Section 64. Section 718.117, Florida Statutes, is amended
5522 to read:
5523 718.117 Termination of common interest community
5524 condominium.—
5525 (1) LEGISLATIVE FINDINGS.—The Legislature finds that common
5526 interest communities condominiums are created as authorized by
5527 statute. In circumstances that may create economic waste, areas
5528 of disrepair, or obsolescence of a common interest community
5529 condominium property for its intended use and thereby lower
5530 property tax values, the Legislature further finds that it is
5531 the public policy of this state to provide by statute a method
5532 to preserve the value of the property interests and the rights
5533 of alienation thereof that owners have in the common interest
5534 community condominium property before and after termination. The
5535 Legislature further finds that it is contrary to the public
5536 policy of this state to require the continued operation of a
5537 common interest community condominium when to do so constitutes
5538 economic waste or when the ability to do so is made impossible
5539 by law or regulation. This section applies to all common
5540 interest communities condominiums in this state in existence on
5541 or after July 1, 2007.
5542 (2) TERMINATION BECAUSE OF ECONOMIC WASTE OR
5543 IMPOSSIBILITY.—
5544 (a) Notwithstanding any provision in the declaration, the
5545 common interest community condominium form of ownership of a
5546 property may be terminated by a plan of termination approved by
5547 the lesser of the lowest percentage of voting interests
5548 necessary to amend the declaration or as otherwise provided in
5549 the declaration for approval of termination if:
5550 1. The total estimated cost of construction or repairs
5551 necessary to construct the intended improvements or restore the
5552 improvements to their former condition or bring them into
5553 compliance with applicable laws or regulations exceeds the
5554 combined fair market value of the units in the common interest
5555 community condominium after completion of the construction or
5556 repairs; or
5557 2. It becomes impossible to operate or reconstruct a common
5558 interest community condominium to its prior physical
5559 configuration because of land use laws or regulations.
5560 (b) Notwithstanding paragraph (a), a common interest
5561 community condominium in which 75 percent or more of the units
5562 are timeshare units may be terminated only pursuant to a plan of
5563 termination approved by 80 percent of the total voting interests
5564 of the association and the holders of 80 percent of the original
5565 principal amount of outstanding recorded mortgage liens of
5566 timeshare estates in the common interest community condominium,
5567 unless the declaration provides for a lower voting percentage.
5568 (c) Notwithstanding paragraph (a), a common interest
5569 community condominium that includes units and timeshare estates
5570 where the improvements have been totally destroyed or demolished
5571 may be terminated pursuant to a plan of termination proposed by
5572 a unit owner upon the filing of a petition in court seeking
5573 equitable relief. Within 10 days after the filing of a petition
5574 as provided in this paragraph and in lieu of the requirements of
5575 paragraph (14)(a) (15)(a), the petitioner shall record the
5576 proposed plan of termination and mail a copy of the proposed
5577 plan and a copy of the petition to:
5578 1. If the association has not been dissolved as a matter of
5579 law, each member of the board of directors of the association
5580 identified in the most recent annual report filed with the
5581 Department of State and the registered agent of the association;
5582 2. The managing entity as defined in s. 721.05(22);
5583 3. Each unit owner and each timeshare estate owner at the
5584 address reflected in the official records of the association,
5585 or, if the association records cannot be obtained by the
5586 petitioner, each unit owner and each timeshare estate owner at
5587 the address listed in the office of the tax collector for tax
5588 notices; and
5589 4. Each holder of a recorded mortgage lien affecting a unit
5590 or timeshare estate at the address appearing on the recorded
5591 mortgage or any recorded assignment thereof.
5592
5593 The association, if it has not been dissolved as a matter of
5594 law, acting as class representative, or the managing entity as
5595 defined in s. 721.05(22), any unit owner, any timeshare estate
5596 owner, or any holder of a recorded mortgage lien affecting a
5597 unit or timeshare estate may intervene in the proceedings to
5598 contest the proposed plan of termination brought pursuant to
5599 this paragraph. The provisions of subsection (8) (9), to the
5600 extent inconsistent with this paragraph, and subsection (15)
5601 (16) are not applicable to a party contesting a plan of
5602 termination under this paragraph. If no party intervenes to
5603 contest the proposed plan within 45 days after the filing of the
5604 petition, the petitioner may move the court to enter a final
5605 judgment to authorize implementation of the plan of termination.
5606 If a party timely intervenes to contest the proposed plan, the
5607 plan may not be implemented until a final judgment has been
5608 entered by the court finding that the proposed plan of
5609 termination is fair and reasonable and authorizing
5610 implementation of the plan.
5611 (3) OPTIONAL TERMINATION.—Except as provided in subsection
5612 (2) or unless the declaration provides for a lower percentage,
5613 the condominium form of ownership may be terminated for all or a
5614 portion of the condominium property pursuant to a plan of
5615 termination approved by at least 80 percent of the total voting
5616 interests of the condominium. If 10 percent or more of the total
5617 voting interests of the condominium have rejected the plan of
5618 termination by negative vote or by providing written objections,
5619 the plan of termination may not proceed.
5620 (a) The termination of the condominium form of ownership is
5621 subject to the following conditions:
5622 1. The total voting interests of the condominium must
5623 include all voting interests for the purpose of considering a
5624 plan of termination. A voting interest of the condominium may
5625 not be suspended for any reason when voting on termination
5626 pursuant to this subsection.
5627 2. If 10 percent or more of the total voting interests of
5628 the condominium reject a plan of termination, a subsequent plan
5629 of termination pursuant to this subsection may not be considered
5630 for 18 months after the date of the rejection.
5631 (b) This subsection does not apply to any condominium
5632 created pursuant to part VI of this chapter until 5 years after
5633 the recording of the declaration of condominium, unless there is
5634 no objection to the plan of termination.
5635 (c) For purposes of this subsection, the term “bulk owner”
5636 means the single holder of such voting interests or an owner
5637 together with a related entity or entities that would be
5638 considered an insider, as defined in s. 726.102, holding such
5639 voting interests. If the condominium association is a
5640 residential association proposed for termination pursuant to
5641 this section and, at the time of recording the plan of
5642 termination, at least 80 percent of the total voting interests
5643 are owned by a bulk owner, the plan of termination is subject to
5644 the following conditions and limitations:
5645 1. If the former condominium units are offered for lease to
5646 the public after the termination, each unit owner in occupancy
5647 immediately before the date of recording of the plan of
5648 termination may lease his or her former unit and remain in
5649 possession of the unit for 12 months after the effective date of
5650 the termination on the same terms as similar unit types within
5651 the property are being offered to the public. In order to obtain
5652 a lease and exercise the right to retain exclusive possession of
5653 the unit owner’s former unit, the unit owner must make a written
5654 request to the termination trustee to rent the former unit
5655 within 90 days after the date the plan of termination is
5656 recorded. Any unit owner who fails to timely make such written
5657 request and sign a lease within 15 days after being presented
5658 with a lease is deemed to have waived his or her right to retain
5659 possession of his or her former unit and shall be required to
5660 vacate the former unit upon the effective date of the
5661 termination, unless otherwise provided in the plan of
5662 termination.
5663 2. Any former unit owner whose unit was granted homestead
5664 exemption status by the applicable county property appraiser as
5665 of the date of the recording of the plan of termination shall be
5666 paid a relocation payment in an amount equal to 1 percent of the
5667 termination proceeds allocated to the owner’s former unit. Any
5668 relocation payment payable under this subparagraph shall be paid
5669 by the single entity or related entities owning at least 80
5670 percent of the total voting interests. Such relocation payment
5671 shall be in addition to the termination proceeds for such
5672 owner’s former unit and shall be paid no later than 10 days
5673 after the former unit owner vacates his or her former unit.
5674 3. For their respective units, all unit owners other than
5675 the bulk owner must be compensated at least 100 percent of the
5676 fair market value of their units. The fair market value shall be
5677 determined as of a date that is no earlier than 90 days before
5678 the date that the plan of termination is recorded and shall be
5679 determined by an independent appraiser selected by the
5680 termination trustee. For an original purchaser from the
5681 developer who rejects the plan of termination and whose unit was
5682 granted homestead exemption status by the applicable county
5683 property appraiser, or was an owner-occupied operating business,
5684 as of the date that the plan of termination is recorded and who
5685 is current in payment of both assessments and other monetary
5686 obligations to the association and any mortgage encumbering the
5687 unit as of the date the plan of termination is recorded, the
5688 fair market value for the unit owner rejecting the plan shall be
5689 at least the original purchase price paid for the unit. For
5690 purposes of this subparagraph, the term “fair market value”
5691 means the price of a unit that a seller is willing to accept and
5692 a buyer is willing to pay on the open market in an arms-length
5693 transaction based on similar units sold in other condominiums,
5694 including units sold in bulk purchases but excluding units sold
5695 at wholesale or distressed prices. The purchase price of units
5696 acquired in bulk following a bankruptcy or foreclosure shall not
5697 be considered for purposes of determining fair market value.
5698 4. The plan of termination must provide for payment of a
5699 first mortgage encumbering a unit to the extent necessary to
5700 satisfy the lien, but the payment may not exceed the unit’s
5701 share of the proceeds of termination under the plan. If the unit
5702 owner is current in payment of both assessments and other
5703 monetary obligations to the association and any mortgage
5704 encumbering the unit as of the date the plan of termination is
5705 recorded, the receipt by the holder of the unit’s share of the
5706 proceeds of termination under the plan or the outstanding
5707 balance of the mortgage, whichever is less, shall be deemed to
5708 have satisfied the first mortgage in full.
5709 5. Before a plan of termination is presented to the unit
5710 owners for consideration pursuant to this paragraph, the plan
5711 must include the following written disclosures in a sworn
5712 statement:
5713 a. The identity of any person or entity that owns or
5714 controls 50 percent or more of the units in the condominium and,
5715 if the units are owned by an artificial entity or entities, a
5716 disclosure of the natural person or persons who, directly or
5717 indirectly, manage or control the entity or entities and the
5718 natural person or persons who, directly or indirectly, own or
5719 control 20 percent or more of the artificial entity or entities
5720 that constitute the bulk owner.
5721 b. The units acquired by any bulk owner, the date each unit
5722 was acquired, and the total amount of compensation paid to each
5723 prior unit owner by the bulk owner, regardless of whether
5724 attributed to the purchase price of the unit.
5725 c. The relationship of any board member to the bulk owner
5726 or any person or entity affiliated with the bulk owner subject
5727 to disclosure pursuant to this subparagraph.
5728 (d) If the members of the board of administration are
5729 elected by the bulk owner, unit owners other than the bulk owner
5730 may elect at least one-third of the members of the board of
5731 administration before the approval of any plan of termination.
5732 (3)(4) EXEMPTION.—A plan of termination is not an amendment
5733 subject to s. 718.110(4). In a partial termination, a plan of
5734 termination is not an amendment subject to s. 718.110(4) if the
5735 ownership share of the common elements of a surviving unit in
5736 the common interest community condominium remains in the same
5737 proportion to the surviving units as it was before the partial
5738 termination.
5739 (4)(5) MORTGAGE LIENHOLDERS.—Notwithstanding any provision
5740 to the contrary in the declaration or this chapter, approval of
5741 a plan of termination by the holder of a recorded mortgage lien
5742 affecting a common interest community condominium parcel in
5743 which fewer than 75 percent of the units are timeshare units is
5744 not required unless the plan of termination will result in less
5745 than the full satisfaction of the mortgage lien affecting the
5746 common interest community condominium parcel. If such approval
5747 is required and not given, a holder of a recorded mortgage lien
5748 who objects to the plan of termination may contest the plan as
5749 provided in subsection (15) (16). At the time of sale, the lien
5750 shall be transferred to the proportionate share of the proceeds
5751 assigned to the common interest community condominium parcel in
5752 the plan of termination or as subsequently modified by the
5753 court.
5754 (5)(6) POWERS IN CONNECTION WITH TERMINATION.—The approval
5755 of the plan of termination does not terminate the association.
5756 It shall continue in existence following approval of the plan of
5757 termination with all powers and duties it had before approval of
5758 the plan. Notwithstanding any provision to the contrary in the
5759 declaration or bylaws, after approval of the plan the board
5760 shall:
5761 (a) Employ directors, agents, attorneys, and other
5762 professionals to liquidate or conclude its affairs.
5763 (b) Conduct the affairs of the association as necessary for
5764 the liquidation or termination.
5765 (c) Carry out contracts and collect, pay, and settle debts
5766 and claims for and against the association.
5767 (d) Defend suits brought against the association.
5768 (e) Sue in the name of the association for all sums due or
5769 owed to the association or to recover any of its property.
5770 (f) Perform any act necessary to maintain, repair, or
5771 demolish unsafe or uninhabitable improvements or other common
5772 interest community condominium property in compliance with
5773 applicable codes.
5774 (g) Sell at public or private sale or exchange, convey, or
5775 otherwise dispose of assets of the association for an amount
5776 deemed to be in the best interests of the association, and
5777 execute bills of sale and deeds of conveyance in the name of the
5778 association.
5779 (h) Collect and receive rents, profits, accounts
5780 receivable, income, maintenance fees, special assessments, or
5781 insurance proceeds for the association.
5782 (i) Contract and do anything in the name of the association
5783 which is proper or convenient to terminate the affairs of the
5784 association.
5785 (6)(7) NATURAL DISASTERS.—
5786 (a) If, after a natural disaster, the identity of the
5787 directors or their right to hold office is in doubt, if they are
5788 deceased or unable to act, if they fail or refuse to act, or if
5789 they cannot be located, any interested person may petition the
5790 circuit court to determine the identity of the directors or, if
5791 found to be in the best interests of the unit owners, to appoint
5792 a receiver to conclude the affairs of the association after a
5793 hearing following notice to such persons as the court directs.
5794 Lienholders shall be given notice of the petition and have the
5795 right to propose persons for the consideration by the court as
5796 receiver. If a receiver is appointed, the court shall direct the
5797 receiver to provide to all unit owners written notice of his or
5798 her appointment as receiver. Such notice shall be mailed,
5799 electronically transmitted, or hand delivered within 10 days
5800 after the appointment. Notice by mail to a unit owner shall be
5801 sent to the address used by the county property appraiser for
5802 notice to the unit owner.
5803 (b) The receiver shall have all powers given to the board
5804 pursuant to the declaration, bylaws, and subsection (5) (6), and
5805 any other powers that are necessary to conclude the affairs of
5806 the association and are set forth in the order of appointment.
5807 The appointment of the receiver is subject to the bonding
5808 requirements of such order. The order shall also provide for the
5809 payment of a reasonable fee to the receiver from the sources
5810 identified in the order, which may include rents, profits,
5811 incomes, maintenance fees, or special assessments collected from
5812 the common interest community condominium property.
5813 (7)(8) REPORTS AND REPLACEMENT OF RECEIVER.—
5814 (a) The association, receiver, or termination trustee shall
5815 prepare reports each quarter following the approval of the plan
5816 of termination setting forth the status and progress of the
5817 termination, costs and fees incurred, the date the termination
5818 is expected to be completed, and the current financial condition
5819 of the association, receivership, or trusteeship and provide
5820 copies of the report by regular mail to the unit owners and
5821 lienors at the mailing address provided to the association by
5822 the unit owners and the lienors.
5823 (b) The unit owners of an association in termination may
5824 recall or remove members of the board of administration with or
5825 without cause at any time as provided in s. 718.112(2)(k)
5826 718.112(2)(j).
5827 (c) The lienors of an association in termination
5828 representing at least 50 percent of the outstanding amount of
5829 liens may petition the court for the appointment of a
5830 termination trustee, which shall be granted upon good cause
5831 shown.
5832 (8)(9) PLAN OF TERMINATION.—The plan of termination must be
5833 a written document executed in the same manner as a deed by unit
5834 owners having the requisite percentage of voting interests to
5835 approve the plan and by the termination trustee. A copy of the
5836 proposed plan of termination shall be given to all unit owners,
5837 in the same manner as for notice of an annual meeting, at least
5838 14 days prior to the meeting at which the plan of termination is
5839 to be voted upon or prior to or simultaneously with the
5840 distribution of the solicitation seeking execution of the plan
5841 of termination or written consent to or joinder in the plan. A
5842 unit owner may document assent to the plan by executing the plan
5843 or by consent to or joinder in the plan in the manner of a deed.
5844 A plan of termination and the consents or joinders of unit
5845 owners must be recorded in the public records of each county in
5846 which any portion of the common interest community condominium
5847 is located. The plan is effective only upon recordation or at a
5848 later date specified in the plan. If the plan of termination
5849 fails to receive the required approval, the plan shall not be
5850 recorded and a new attempt to terminate the common interest
5851 community condominium may not be proposed at a meeting or by
5852 solicitation for joinder and consent for 18 months after the
5853 date that such failed plan of termination was first given to all
5854 unit owners in the manner as provided in this subsection.
5855 (a) If the plan of termination is voted on at a meeting of
5856 the unit owners called in accordance with this subsection, any
5857 unit owner desiring to reject the plan must do so by either
5858 voting to reject the plan in person or by proxy, or by
5859 delivering a written rejection to the association before or at
5860 the meeting.
5861 (b) If the plan of termination is approved by written
5862 consent or joinder without a meeting of the unit owners, any
5863 unit owner desiring to object to the plan must deliver a written
5864 objection to the association within 20 days after the date that
5865 the association notifies the nonconsenting owners, in the manner
5866 provided in paragraph (14)(a) (15)(a), that the plan of
5867 termination has been approved by written action in lieu of a
5868 unit owner meeting.
5869 (9)(10) PLAN OF TERMINATION; REQUIRED PROVISIONS.—The plan
5870 of termination must specify:
5871 (a) The name, address, and powers of the termination
5872 trustee.
5873 (b) A date after which the plan of termination is void if
5874 it has not been recorded.
5875 (c) The interests of the respective unit owners in the
5876 association property, common surplus, and other assets of the
5877 association, which shall be the same as the respective interests
5878 of the unit owners in the common elements immediately before the
5879 termination, unless otherwise provided in the declaration.
5880 (d) The interests of the respective unit owners in any
5881 proceeds from the sale of the common interest community
5882 condominium property. The plan of termination may apportion
5883 those proceeds pursuant to any method prescribed in subsection
5884 (11) (12). If, pursuant to the plan of termination, common
5885 interest community condominium property or real property owned
5886 by the association is to be sold following termination, the plan
5887 must provide for the sale and may establish any minimum sale
5888 terms.
5889 (e) Any interests of the respective unit owners in
5890 insurance proceeds or condemnation proceeds that are not used
5891 for repair or reconstruction at the time of termination. Unless
5892 the declaration expressly addresses the distribution of
5893 insurance proceeds or condemnation proceeds, the plan of
5894 termination may apportion those proceeds pursuant to any method
5895 prescribed in subsection (11) (12).
5896 (10)(11) PLAN OF TERMINATION; OPTIONAL PROVISIONS;
5897 CONDITIONAL TERMINATION; WITHDRAWAL; ERRORS.—
5898 (a) Unless the plan of termination expressly authorizes a
5899 unit owner or other person to retain the exclusive right to
5900 possess that portion of the real estate which formerly
5901 constituted the unit after termination or to use the common
5902 elements of the condominium after termination, all such rights
5903 in the unit and common elements automatically terminate on the
5904 effective date of termination. Unless the plan expressly
5905 provides otherwise, all leases, occupancy agreements, subleases,
5906 licenses, or other agreements for the use or occupancy of any
5907 unit or common elements of the condominium automatically
5908 terminate on the effective date of termination. If the plan
5909 expressly authorizes a unit owner or other person to retain
5910 exclusive right of possession for that portion of the real
5911 estate that formerly constituted the unit or to use the common
5912 elements of the condominium after termination, the plan must
5913 specify the terms and conditions of possession. In a partial
5914 termination, the plan of termination as specified in subsection
5915 (9) (10) must also identify the units that survive the partial
5916 termination and provide that such units remain in the common
5917 interest community condominium form of ownership pursuant to an
5918 amendment to the documents declaration of the common interest
5919 community condominium or an amended and restated declaration. In
5920 a partial termination, title to the surviving units and common
5921 elements that remain part of the common interest community
5922 condominium property specified in the plan of termination remain
5923 vested in the ownership shown in the public records and do not
5924 vest in the termination trustee.
5925 (b) In a conditional termination, the plan must specify the
5926 conditions for termination. A conditional plan does not vest
5927 title in the termination trustee until the plan and a
5928 certificate executed by the association with the formalities of
5929 a deed, confirming that the conditions in the conditional plan
5930 have been satisfied or waived by the requisite percentage of the
5931 voting interests, have been recorded. In a partial termination,
5932 the plan does not vest title to the surviving units or common
5933 elements that remain part of the common interest community
5934 condominium property in the termination trustee.
5935 (c) Unless otherwise provided in the plan of termination,
5936 at any time before the sale of the condominium property, a plan
5937 may be withdrawn or modified by the affirmative vote or written
5938 agreement of at least the same percentage of voting interests in
5939 the condominium as that which was required for the initial
5940 approval of the plan.
5941 (d) Upon the discovery of a scrivener’s error in the plan
5942 of termination, the termination trustee may record an amended
5943 plan or an amendment to the plan for the purpose of correcting
5944 the error, and the amended plan or amendment to the plan must be
5945 executed by the termination trustee in the same manner as
5946 required for the execution of a deed.
5947 (11)(12) ALLOCATION OF PROCEEDS OF SALE OF COMMON INTEREST
5948 COMMUNITY CONDOMINIUM PROPERTY.—
5949 (a) Unless the declaration expressly provides for the
5950 allocation of the proceeds of sale of common interest community
5951 condominium property, the plan of termination may require
5952 separate valuations for the common elements. However, in the
5953 absence of such provision, it is presumed that the common
5954 elements have no independent value but rather that their value
5955 is incorporated into the valuation of the units. In a partial
5956 termination, the aggregate values of the units and common
5957 elements that are being terminated must be separately
5958 determined, and the plan of termination must specify the
5959 allocation of the proceeds of sale for the units and common
5960 elements being terminated.
5961 (b) The portion of proceeds allocated to the units shall be
5962 apportioned among the individual units. The apportionment is
5963 deemed fair and reasonable if it is determined by any of the
5964 following methods:
5965 1. The respective values of the units based on the fair
5966 market values of the units immediately before the termination,
5967 as determined by one or more independent appraisers selected by
5968 the association or termination trustee;
5969 2. The respective values of the units based on the most
5970 recent market value of the units before the termination, as
5971 provided in the county property appraiser’s records; or
5972 3. The respective interests of the units in the common
5973 elements specified in the declaration immediately before the
5974 termination.
5975 (c) The methods of apportionment in paragraph (b) do not
5976 prohibit any other method of apportioning the proceeds of sale
5977 allocated to the units or any other method of valuing the units
5978 agreed upon in the plan of termination. Any portion of the
5979 proceeds separately allocated to the common elements shall be
5980 apportioned among the units based upon their respective
5981 interests in the common elements as provided in the declaration.
5982 (d) Liens that encumber a unit shall, unless otherwise
5983 provided in the plan of termination, be transferred to the
5984 proceeds of sale of the common interest community condominium
5985 property and the proceeds of sale or other distribution of
5986 association property, common surplus, or other association
5987 assets attributable to such unit in their same priority. In a
5988 partial termination, liens that encumber a unit being terminated
5989 must be transferred to the proceeds of sale of that portion of
5990 the common interest community condominium property being
5991 terminated which are attributable to such unit. The proceeds of
5992 any sale of common interest community condominium property
5993 pursuant to a plan of termination may not be deemed to be common
5994 surplus or association property. The holder of a lien that
5995 encumbers a unit at the time of recording a plan must, within 30
5996 days after the written request from the termination trustee,
5997 deliver a statement to the termination trustee confirming the
5998 outstanding amount of any obligations of the unit owner secured
5999 by the lien.
6000 (e) The termination trustee may setoff against, and reduce
6001 the share of, the termination proceeds allocated to a unit by
6002 the following amounts, which may include attorney fees and
6003 costs:
6004 1. All unpaid assessments, taxes, late fees, interest,
6005 fines, charges, and other amounts due and owing to the
6006 association associated with the unit, its owner, or the owner’s
6007 family members, guests, tenants, occupants, licensees, invitees,
6008 or other persons.
6009 2. All costs of clearing title to the owner’s unit,
6010 including, but not limited to, locating lienors, obtaining
6011 statements from such lienors confirming the outstanding amount
6012 of any obligations of the unit owner, and paying all mortgages
6013 and other liens, judgments, and encumbrances and filing suit to
6014 quiet title or remove title defects.
6015 3. All costs of removing the owner or the owner’s family
6016 members, guests, tenants, occupants, licensees, invitees, or
6017 other persons from the unit in the event such persons fail to
6018 vacate a unit as required by the plan.
6019 4. All costs arising from, or related to, any breach of the
6020 plan by the owner or the owner’s family members, guests,
6021 tenants, occupants, licensees, invitees, or other persons.
6022 5. All costs arising out of, or related to, the removal and
6023 storage of all personal property remaining in a unit, other than
6024 personal property owned by the association, so that the unit may
6025 be delivered vacant and clear of the owner or the owner’s family
6026 members, guests, tenants, occupants, licensees, invitees, or
6027 other persons as required by the plan.
6028 6. All costs arising out of, or related to, the appointment
6029 and activities of a receiver or attorney ad litem acting for the
6030 owner in the event that the owner is unable to be located.
6031 (12)(13) TERMINATION TRUSTEE.—The association shall serve
6032 as termination trustee unless another person is appointed in the
6033 plan of termination. If the association is unable, unwilling, or
6034 fails to act as trustee, any unit owner may petition the court
6035 to appoint a trustee. Upon the date of the recording or at a
6036 later date specified in the plan, title to the common interest
6037 community condominium property vests in the trustee. Unless
6038 prohibited by the plan, the termination trustee shall be vested
6039 with the powers given to the board pursuant to the declaration,
6040 bylaws, and subsection (5) (6). If the association is not the
6041 termination trustee, the trustee’s powers shall be coextensive
6042 with those of the association to the extent not prohibited in
6043 the plan of termination or the order of appointment. If the
6044 association is not the termination trustee, the association
6045 shall transfer any association property to the trustee. If the
6046 association is dissolved, the trustee shall also have such other
6047 powers necessary to conclude the affairs of the association.
6048 (13)(14) TITLE VESTED IN TERMINATION TRUSTEE.—If
6049 termination is pursuant to a plan of termination under
6050 subsection (2) or subsection (3), title to the common interest
6051 community condominium property being terminated vests in the
6052 termination trustee when the plan is recorded or at a later date
6053 specified in the plan. The unit owners thereafter become the
6054 beneficiaries of the proceeds realized from the plan of
6055 termination as set forth in the plan. The termination trustee
6056 may deal with the common interest community condominium property
6057 being terminated or any interest therein if the plan confers on
6058 the trustee the authority to protect, conserve, manage, sell, or
6059 dispose of the common interest community condominium property.
6060 The trustee, on behalf of the unit owners, may contract for the
6061 sale of real property being terminated, but the contract is not
6062 binding on the unit owners until the plan is approved pursuant
6063 to subsection (2) or subsection (3).
6064 (14)(15) NOTICE.—
6065 (a) Within 30 days after a plan of termination has been
6066 recorded, the termination trustee shall deliver by certified
6067 mail, return receipt requested, notice to all unit owners,
6068 lienors of the common interest community condominium property,
6069 and lienors of all units at their last known addresses that a
6070 plan of termination has been recorded. The notice must include
6071 the book and page number of the public records in which the plan
6072 was recorded, notice that a copy of the plan shall be furnished
6073 upon written request, and notice that the unit owner or lienor
6074 has the right to contest the fairness of the plan.
6075 (b) The trustee, within 90 days after the effective date of
6076 the plan, shall provide to the division a certified copy of the
6077 recorded plan, the date the plan was recorded, and the county,
6078 book, and page number of the public records in which the plan is
6079 recorded.
6080 (15)(16) RIGHT TO CONTEST.—A unit owner or lienor may
6081 contest a plan of termination by initiating a petition for
6082 mandatory nonbinding arbitration pursuant to s. 718.1255 within
6083 90 days after the date the plan is recorded. A unit owner or
6084 lienor may only contest the fairness and reasonableness of the
6085 apportionment of the proceeds from the sale among the unit
6086 owners, that the liens of the first mortgages of unit owners
6087 other than the bulk owner have not or will not be satisfied to
6088 the extent required by subsection (3), or that the required vote
6089 to approve the plan was not obtained. A unit owner or lienor who
6090 does not contest the plan within the 90-day period is barred
6091 from asserting or prosecuting a claim against the association,
6092 the termination trustee, any unit owner, or any successor in
6093 interest to the common interest community condominium property.
6094 In an action contesting a plan of termination, the person
6095 contesting the plan has the burden of pleading and proving that
6096 the apportionment of the proceeds from the sale among the unit
6097 owners was not fair and reasonable or that the required vote was
6098 not obtained. The apportionment of sale proceeds is presumed
6099 fair and reasonable if it was determined pursuant to the methods
6100 prescribed in subsection (11) (12). The arbitrator shall
6101 determine the rights and interests of the parties in the
6102 apportionment of the sale proceeds. If the arbitrator determines
6103 that the apportionment of sales proceeds is not fair and
6104 reasonable, the arbitrator may void the plan or may modify the
6105 plan to apportion the proceeds in a fair and reasonable manner
6106 pursuant to this section based upon the proceedings and order
6107 the modified plan of termination to be implemented. If the
6108 arbitrator determines that the plan was not properly approved,
6109 or that the procedures to adopt the plan were not properly
6110 followed, the arbitrator may void the plan or grant other relief
6111 it deems just and proper. The arbitrator shall automatically
6112 void the plan upon a finding that any of the disclosures
6113 required in subparagraph (3)(c)5. are omitted, misleading,
6114 incomplete, or inaccurate. Any challenge to a plan, other than a
6115 challenge that the required vote was not obtained, does not
6116 affect title to the condominium property or the vesting of the
6117 condominium property in the trustee, but shall only be a claim
6118 against the proceeds of the plan. In any such action, the
6119 prevailing party shall recover reasonable attorney fees and
6120 costs.
6121 (16)(17) DISTRIBUTION.—
6122 (a) Following termination of the common interest community
6123 condominium, the common interest community condominium property,
6124 association property, common surplus, and other assets of the
6125 association shall be held by the termination trustee pursuant to
6126 the plan of termination, as trustee for unit owners and holders
6127 of liens on the units, in their order of priority unless
6128 otherwise set forth in the plan of termination.
6129 (b) Not less than 30 days before the first distribution,
6130 the termination trustee shall deliver by certified mail, return
6131 receipt requested, a notice of the estimated distribution to all
6132 unit owners, lienors of the common interest community
6133 condominium property, and lienors of each unit at their last
6134 known addresses stating a good faith estimate of the amount of
6135 the distributions to each class and the procedures and deadline
6136 for notifying the termination trustee of any objections to the
6137 amount. The deadline must be at least 15 days after the date the
6138 notice was mailed. The notice may be sent with or after the
6139 notice required by subsection (14) (15). If a unit owner or
6140 lienor files a timely objection with the termination trustee,
6141 the trustee need not distribute the funds and property allocated
6142 to the respective unit owner or lienor until the trustee has had
6143 a reasonable time to determine the validity of the adverse
6144 claim. In the alternative, the trustee may interplead the unit
6145 owner, lienor, and any other person claiming an interest in the
6146 unit and deposit the funds allocated to the unit in the court
6147 registry, at which time the common interest community
6148 condominium property, association property, common surplus, and
6149 other assets of the association are free of all claims and liens
6150 of the parties to the suit. In an interpleader action, the
6151 trustee and prevailing party may recover reasonable attorney
6152 attorney’s fees and costs.
6153 (c) The proceeds from any sale of common interest community
6154 condominium property or association property and any remaining
6155 common interest community condominium property or association
6156 property, common surplus, and other assets shall be distributed
6157 in the following priority:
6158 1. To pay the reasonable termination trustee’s fees and
6159 costs and accounting fees and costs.
6160 2. To lienholders of liens recorded prior to the recording
6161 of the declaration.
6162 3. To purchase-money lienholders on units to the extent
6163 necessary to satisfy their liens; however, the distribution may
6164 not exceed a unit owner’s share of the proceeds.
6165 4. To lienholders of liens of the association which have
6166 been consented to under s. 718.121(1).
6167 5. To creditors of the association, as their interests
6168 appear.
6169 6. To unit owners, the proceeds of any sale of common
6170 interest community condominium property subject to satisfaction
6171 of liens on each unit in their order of priority, in shares
6172 specified in the plan of termination, unless objected to by a
6173 unit owner or lienor as provided in paragraph (b).
6174 7. To unit owners, the remaining common interest community
6175 condominium property, subject to satisfaction of liens on each
6176 unit in their order of priority, in shares specified in the plan
6177 of termination, unless objected to by a unit owner or a lienor
6178 as provided in paragraph (b).
6179 8. To unit owners, the proceeds of any sale of association
6180 property, the remaining association property, common surplus,
6181 and other assets of the association, subject to satisfaction of
6182 liens on each unit in their order of priority, in shares
6183 specified in the plan of termination, unless objected to by a
6184 unit owner or a lienor as provided in paragraph (b).
6185 (d) After determining that all known debts and liabilities
6186 of an association in the process of termination have been paid
6187 or adequately provided for, the termination trustee shall
6188 distribute the remaining assets pursuant to the plan of
6189 termination. If the termination is by court proceeding or
6190 subject to court supervision, the distribution may not be made
6191 until any period for the presentation of claims ordered by the
6192 court has elapsed.
6193 (e) Assets held by an association upon a valid condition
6194 requiring return, transfer, or conveyance, which condition has
6195 occurred or will occur, shall be returned, transferred, or
6196 conveyed in accordance with the condition. The remaining
6197 association assets shall be distributed pursuant to paragraph
6198 (c).
6199 (f) Distribution may be made in money, property, or
6200 securities and in installments or as a lump sum, if it can be
6201 done fairly and ratably and in conformity with the plan of
6202 termination. Distribution shall be made as soon as is reasonably
6203 consistent with the beneficial liquidation of the assets.
6204 (17)(18) ASSOCIATION STATUS.—The termination of a common
6205 interest community condominium does not change the corporate
6206 status of the association that operated the common interest
6207 community condominium property. The association continues to
6208 exist to conclude its affairs, prosecute and defend actions by
6209 or against it, collect and discharge obligations, dispose of and
6210 convey its property, and collect and divide its assets, but not
6211 to act except as necessary to conclude its affairs. In a partial
6212 termination, the association may continue as the common interest
6213 community condominium association for the property that remains
6214 subject to the documents declaration of the common interest
6215 community condominium.
6216 (18)(19) CREATION OF ANOTHER COMMON INTEREST COMMUNITY
6217 CONDOMINIUM.—The termination or partial termination of a common
6218 interest community condominium does not bar the filing of a new
6219 documents declaration of the common interest community
6220 condominium by the termination trustee, or the trustee’s
6221 successor in interest, for the terminated property or any
6222 portion thereof. The partial termination of a common interest
6223 community condominium may provide for the simultaneous filing of
6224 an amendment to the documents declaration of the common interest
6225 community condominium or an amended and restated documents
6226 declaration of the common interest community condominium by the
6227 common interest community condominium association for any
6228 portion of the property not terminated from the common interest
6229 community condominium form of ownership.
6230 (19)(20) EXCLUSION.—This section does not apply to the
6231 termination of a common interest community condominium incident
6232 to a merger of that common interest community condominium with
6233 one or more other common interest communities condominiums under
6234 s. 718.110(7).
6235 Section 65. Section 718.118, Florida Statutes, is amended
6236 to read:
6237 718.118 Equitable relief.—In the event of substantial
6238 damage to or destruction of all or a substantial part of the
6239 common interest community condominium property, and if the
6240 property is not repaired, reconstructed, or rebuilt within a
6241 reasonable period of time, any unit owner may petition a court
6242 for equitable relief, which may include a termination of the
6243 common interest community condominium and a partition.
6244 Section 66. Section 718.119, Florida Statutes, is amended
6245 to read:
6246 718.119 Limitation of liability.—
6247 (1) The liability of the owner of a unit for common
6248 expenses is limited to the amounts for which he or she is
6249 assessed for common expenses from time to time in accordance
6250 with this chapter, the declaration, and bylaws.
6251 (2) The owner of a unit may be personally liable for the
6252 acts or omissions of the association in relation to the use of
6253 the common elements, but only to the extent of his or her pro
6254 rata share of that liability in the same percentage as his or
6255 her interest in the common elements, and then in no case shall
6256 that liability exceed the value of his or her unit.
6257 (3) In any legal action in which the association may be
6258 exposed to liability in excess of insurance coverage protecting
6259 it and the unit owners, the association shall give notice of the
6260 exposure within a reasonable time to all unit owners, and they
6261 shall have the right to intervene and defend.
6262 Section 67. Section 718.120, Florida Statutes, is amended
6263 to read:
6264 718.120 Separate taxation of common interest community
6265 condominium parcels; survival of declaration after tax sale;
6266 assessment of timeshare estates.—
6267 (1) Ad valorem taxes, benefit taxes, and special
6268 assessments by taxing authorities shall be assessed against the
6269 common interest community condominium parcels and not upon the
6270 common interest community condominium property as a whole. No ad
6271 valorem tax, benefit tax, or special assessment, including those
6272 made by special districts, drainage districts, or water
6273 management districts, may be separately assessed against
6274 recreational facilities or other common elements if such
6275 facilities or common elements are owned by the common interest
6276 community condominium association or are owned jointly by the
6277 owners of the common interest community condominium parcels.
6278 Each common interest community condominium parcel shall be
6279 separately assessed for ad valorem taxes and special assessments
6280 as a single parcel. The taxes and special assessments levied
6281 against each common interest community condominium parcel shall
6282 constitute a lien only upon the common interest community
6283 condominium parcel assessed and upon no other portion of the
6284 common interest community condominium property.
6285 (2) All provisions of the documents a declaration relating
6286 to a common interest community condominium parcel that which has
6287 been sold for taxes or special assessments survive and are
6288 enforceable after the issuance of a tax deed or master’s deed,
6289 upon foreclosure of an assessment, a certificate or lien, a tax
6290 deed, tax certificate, or tax lien, to the same extent that they
6291 would be enforceable against a voluntary grantee of the title
6292 immediately prior to the delivery of the tax deed, master’s
6293 deed, or clerk’s certificate of title as provided in s. 197.573.
6294 (3) The association shall provide information to the county
6295 property appraiser annually upon request as to the rental status
6296 of each common interest community unit to verify homestead
6297 exemptions.
6298 (4) Any common interest community unit not constructed
6299 within 7 years after recordation of the documents shall, upon
6300 application and certification to the property appraiser by the
6301 association, be removed from the tax rolls.
6302 (5) Any common interest community subject to a submerged
6303 land lease with the Department of Environmental Protection is
6304 not subject to any lease fee or tax on the lease.
6305 (3) Condominium property divided into fee timeshare real
6306 property shall be assessed for purposes of ad valorem taxes and
6307 special assessments as provided in s. 192.037.
6308 Section 68. Section 718.121, Florida Statutes, is amended
6309 to read:
6310 718.121 Liens.—
6311 (1) Subsequent to recording the declaration and while the
6312 property remains subject to the declaration, no liens of any
6313 nature are valid against the common interest community
6314 condominium property as a whole except with the unanimous
6315 consent of the unit owners. During this period, liens may arise
6316 or be created only against individual common interest community
6317 condominium parcels.
6318 (2) Labor performed on or materials furnished to a unit
6319 shall not be the basis for the filing of a lien pursuant to part
6320 I of chapter 713, the Construction Lien Law, against the unit or
6321 common interest community condominium parcel of any unit owner
6322 not expressly consenting to or requesting the labor or
6323 materials. Labor performed on or materials furnished to the
6324 common elements are not the basis for a lien on the common
6325 elements, but if authorized by the association, the labor or
6326 materials are deemed to be performed or furnished with the
6327 express consent of each unit owner and may be the basis for the
6328 filing of a lien against all common interest community
6329 condominium parcels in the proportions for which the owners are
6330 liable for common expenses only if a money judgment has been
6331 obtained in a court of competent jurisdiction.
6332 (3) If a lien against two or more common interest community
6333 condominium parcels becomes effective, each owner may relieve
6334 his or her common interest community condominium parcel of the
6335 lien by exercising any of the rights of a property owner under
6336 chapter 713, or by payment of the proportionate amount
6337 attributable to his or her common interest community condominium
6338 parcel. Upon the payment, the lienholder lienor shall release
6339 the lien of record for that common interest community
6340 condominium parcel.
6341 (4) Except as otherwise provided in this chapter, no lien
6342 may be filed by the association against a common interest
6343 community condominium unit until 30 days after the date on which
6344 a notice of intent to file a lien has been delivered to the
6345 owner by registered or certified mail, return receipt requested,
6346 and by first-class United States mail to the owner at his or her
6347 last known address as reflected in the records of the
6348 association. However, if the address is within the United
6349 States, and delivered to the owner at the address of the unit if
6350 the owner’s address as reflected in the records of the
6351 association is not the unit address. If the address reflected in
6352 the records is outside the United States, sending the notice
6353 must be sent to that address and to the unit address by first
6354 class United States mail to the unit and by first-class mail
6355 international to the unit owner’s last known address to be is
6356 sufficient. Delivery of the notice shall be deemed given upon
6357 mailing as required by this subsection. Notice is provided if
6358 served on the unit owner in the manner authorized by chapter 48
6359 and the Florida Rules of Civil Procedure. The notice must be in
6360 substantially the following form:
6361 NOTICE OF INTENT
6362 TO RECORD A CLAIM OF LIEN
6363 RE: Unit .... of ...(name of association)...
6364 The following amounts are currently due on your account to
6365 ...(name of association)..., and must be paid within 30 days
6366 after your receipt of this letter. This letter shall serve as
6367 the association’s notice of intent to record a Claim of Lien
6368 against your property no sooner than 30 days after your receipt
6369 of this letter, unless you pay in full the amounts set forth
6370 below:
6371 Maintenance due ...(dates)... $.....
6372 Late fee, if applicable $.....
6373 Interest through ...(dates)...* $.....
6374 Certified mail charges $.....
6375 Other costs $.....
6376 TOTAL OUTSTANDING $.....
6377 *Interest accrues at the rate of .... percent per annum.
6378 Section 69. Section 718.122, Florida Statutes, is amended
6379 to read:
6380 718.122 Unconscionability of certain leases; rebuttable
6381 presumption.—
6382 (1) A lease pertaining to use by common interest community
6383 condominium unit owners of recreational or other common
6384 facilities, irrespective of the date on which such lease was
6385 entered into, is presumptively unconscionable if all of the
6386 following elements exist:
6387 (a) The lease was executed by persons none of whom at the
6388 time of the execution of the lease were elected by common
6389 interest community condominium unit owners, other than the
6390 developer, to represent their interests;
6391 (b) The lease requires either the common interest community
6392 condominium association or the common interest community
6393 condominium unit owners to pay real estate taxes on the subject
6394 real property;
6395 (c) The lease requires either the common interest community
6396 condominium association or the common interest community
6397 condominium unit owners to insure buildings or other facilities
6398 on the subject real property against fire or any other hazard;
6399 (d) The lease requires either the common interest community
6400 condominium association or the common interest community
6401 condominium unit owners to perform some or all maintenance
6402 obligations pertaining to the subject real property or
6403 facilities located upon the subject real property;
6404 (e) The lease requires either the common interest community
6405 condominium association or the common interest community
6406 condominium unit owners to pay rents to the lessor for a period
6407 of 21 years or more;
6408 (f) The lease provides that failure of the lessee to make
6409 payments of rents due under the lease either creates,
6410 establishes, or permits establishment of a lien upon individual
6411 common interest community condominium units of the common
6412 interest community condominium to secure claims for rent;
6413 (g) The lease requires an annual rental that which exceeds
6414 25 percent of the appraised value of the leased property as
6415 improved, provided that, for purposes of this paragraph, “annual
6416 rental” means the amount due during the first 12 months of the
6417 lease for all units, regardless of whether such units were in
6418 fact occupied or sold during that period, and “appraised value”
6419 means the appraised value placed upon the leased property the
6420 first tax year after the sale of a unit in the common interest
6421 community condominium;
6422 (h) The lease provides for a periodic rental increase; and
6423 (i) The lease or other common interest community
6424 condominium documents require that every transferee of a common
6425 interest community condominium unit must assume obligations
6426 under the lease.
6427 (2) The Legislature expressly finds that many leases
6428 involving use of recreational or other common facilities by
6429 residents of common interest communities condominiums were
6430 entered into by parties wholly representative of the interests
6431 of a common interest community condominium developer at a time
6432 when the common interest community condominium unit owners not
6433 only did not control the administration of their common interest
6434 community condominium, but also had little or no voice in such
6435 administration. Such leases often contain numerous obligations
6436 on the part of either or both a common interest community
6437 condominium association and common interest community
6438 condominium unit owners with relatively few obligations on the
6439 part of the lessor. Such leases may or may not be unconscionable
6440 in any given case. Nevertheless, the Legislature finds that a
6441 combination of certain onerous obligations and circumstances
6442 warrants the establishment of a rebuttable presumption of
6443 unconscionability of certain leases, as specified in subsection
6444 (1). The presumption may be rebutted by a lessor upon the
6445 showing of additional facts and circumstances to justify and
6446 validate what may otherwise appear appears to be an
6447 unconscionable lease under this section. Failure of a lease to
6448 contain all the enumerated elements shall neither preclude a
6449 determination of unconscionability of the lease nor raise a
6450 presumption as to its conscionability. It is the intent of the
6451 Legislature that this section is remedial and does not create
6452 any new cause of action to invalidate any common interest
6453 community condominium lease, but shall operate as a statutory
6454 prescription on procedural matters in actions brought on one or
6455 more causes of action existing at the time of the execution of
6456 such lease.
6457 (3) Any provision of the Florida Statutes to the contrary
6458 notwithstanding, neither the statute of limitations nor laches
6459 shall prohibit unit owners from maintaining a cause of action
6460 under the provisions of this section.
6461 Section 70. Section 718.1224, Florida Statutes, is amended
6462 to read:
6463 718.1224 Prohibition against SLAPP suits.—
6464 (1) It is the intent of the Legislature to protect the
6465 right of common interest community condominium unit owners to
6466 exercise their rights to instruct their representatives and
6467 petition for redress of grievances before the various
6468 governmental entities of this state as protected by the First
6469 Amendment to the United States Constitution and s. 5, Art. I of
6470 the State Constitution. The Legislature recognizes that
6471 strategic lawsuits against public participation, or “SLAPP
6472 suits,” as they are typically referred to, have occurred when
6473 association members are sued by individuals, business entities,
6474 or governmental entities arising out of a common interest
6475 community condominium unit owner’s appearance and presentation
6476 before a governmental entity on matters related to the common
6477 interest community condominium association. However, it is the
6478 public policy of this state that governmental entities, business
6479 organizations, and individuals not engage in SLAPP suits,
6480 because such actions are inconsistent with the right of common
6481 interest community condominium unit owners to participate in the
6482 state’s institutions of government. Therefore, the Legislature
6483 finds and declares that prohibiting such lawsuits by
6484 governmental entities, business entities, and individuals
6485 against common interest community condominium unit owners who
6486 address matters concerning their common interest community
6487 condominium association will preserve this fundamental state
6488 policy, preserve the constitutional rights of common interest
6489 community condominium unit owners, and ensure the continuation
6490 of representative government in this state. It is the intent of
6491 the Legislature that such lawsuits be expeditiously disposed of
6492 by the courts. As used in this subsection, the term
6493 “governmental entity” means the state, including the executive,
6494 legislative, and judicial branches of government; the
6495 independent establishments of the state, counties,
6496 municipalities, districts, authorities, boards, or commissions;
6497 or any agencies of these branches that are subject to chapter
6498 286.
6499 (2) A governmental entity, business organization, or
6500 individual in this state may not file or cause to be filed
6501 through its employees or agents any lawsuit, cause of action,
6502 claim, cross-claim, or counterclaim against a common interest
6503 community condominium unit owner without merit and solely
6504 because such common interest community condominium unit owner
6505 has exercised the right to instruct his or her representatives
6506 or the right to petition for redress of grievances before the
6507 various governmental entities of this state, as protected by the
6508 First Amendment to the United States Constitution and s. 5, Art.
6509 I of the State Constitution.
6510 (3) A common interest community condominium unit owner sued
6511 by a governmental entity, business organization, or individual
6512 in violation of this section has a right to an expeditious
6513 resolution of a claim that the suit is in violation of this
6514 section. A common interest community condominium unit owner may
6515 petition the court for an order dismissing the action or
6516 granting final judgment in favor of that common interest
6517 community condominium unit owner. The petitioner may file a
6518 motion for summary judgment, together with supplemental
6519 affidavits, seeking a determination that the governmental
6520 entity’s, business organization’s, or individual’s lawsuit has
6521 been brought in violation of this section. The governmental
6522 entity, business organization, or individual shall thereafter
6523 file its response and any supplemental affidavits. As soon as
6524 practicable, the court shall set a hearing on the petitioner’s
6525 motion, which shall be held at the earliest possible time after
6526 the filing of the governmental entity’s, business
6527 organization’s, or individual’s response. The court may award
6528 the common interest community condominium unit owner sued by the
6529 governmental entity, business organization, or individual actual
6530 damages arising from the governmental entity’s, individual’s, or
6531 business organization’s violation of this section. A court may
6532 treble the damages awarded to a prevailing common interest
6533 community condominium unit owner and shall state the basis for
6534 the treble damages award in its judgment. The court shall award
6535 the prevailing party reasonable attorney attorney’s fees and
6536 costs incurred in connection with a claim that an action was
6537 filed in violation of this section.
6538 (4) Common interest community Condominium associations may
6539 not expend association funds in prosecuting a SLAPP suit against
6540 a common interest community condominium unit owner.
6541 Section 71. Section 718.123, Florida Statutes, is amended
6542 to read:
6543 718.123 Right of owners to peaceably assemble.—
6544 (1) All common elements, common areas, and recreational
6545 facilities serving any common interest community condominium
6546 shall be available to unit owners in the common interest
6547 community condominium or common interest communities
6548 condominiums served thereby and their invited guests for the use
6549 intended for such common elements, common areas, and
6550 recreational facilities, subject to the provisions of s.
6551 718.106(5) 718.106(4). The entity or entities responsible for
6552 the operation of the common elements, common areas, and
6553 recreational facilities may adopt reasonable rules and
6554 regulations pertaining to the use of such common elements,
6555 common areas, and recreational facilities. No entity or entities
6556 shall unreasonably restrict any unit owner’s right to peaceably
6557 assemble or right to invite public officers or candidates for
6558 public office to appear and speak in common elements, common
6559 areas, and recreational facilities.
6560 (2) Any owner prevented from exercising rights guaranteed
6561 by subsection (1) may bring an action in the appropriate court
6562 of the county in which the alleged infringement occurred, and,
6563 upon favorable adjudication, the court shall enjoin the
6564 enforcement of any provision contained in any common interest
6565 community condominium document or rule that which operates to
6566 deprive the owner of such rights.
6567 Section 72. Section 718.1232, Florida Statutes, is amended
6568 to read:
6569 718.1232 Cable television service; resident’s right to
6570 access without extra charge.—No resident of any common interest
6571 community condominium dwelling unit, whether tenant or owner,
6572 shall be denied access to any available franchised or licensed
6573 cable television service, nor shall such resident or cable
6574 television service be required to pay anything of value in order
6575 to obtain or provide such service except those charges normally
6576 paid for like services by residents of, or providers of such
6577 services to, single-family homes within the same franchised or
6578 licensed area and except for installation charges as such
6579 charges may be agreed to between such resident and the provider
6580 of such services.
6581 Section 73. Section 718.124, Florida Statutes, is amended
6582 to read:
6583 718.124 Limitation on actions by association.—The statute
6584 of limitations for any actions in law or equity which a common
6585 interest community which a condominium association or a
6586 cooperative association may have shall not begin to run until
6587 the unit owners have elected a majority of the members of the
6588 board of administration.
6589 Section 74. Section 718.125, Florida Statutes, is amended
6590 to read:
6591 718.125 Attorney Attorney’s fees.—If a contract or lease
6592 between a common interest community condominium unit owner or
6593 association and a developer contains a provision allowing
6594 attorney attorney’s fees to the developer, should any litigation
6595 arise under the provisions of the contract or lease, the court
6596 shall also allow reasonable attorney attorney’s fees to the unit
6597 owner or association when the unit owner or association prevails
6598 in any action by or against the unit owner or association with
6599 respect to the contract or lease.
6600 Section 75. Section 718.1255, Florida Statutes, is amended
6601 to read:
6602 718.1255 Alternative dispute resolution; voluntary
6603 mediation; mandatory nonbinding arbitration; legislative
6604 findings.—
6605 (1) DEFINITIONS.—As used in this section, the term
6606 “dispute” means any disagreement between two or more parties
6607 that involves:
6608 (a) The authority of the board of directors, under this
6609 chapter or association document to:
6610 1. Require any owner to take any action, or not to take any
6611 action, involving that owner’s unit or the appurtenances
6612 thereto.
6613 2. Alter or add to a common area or element.
6614 (b) The failure of a governing body, when required by this
6615 chapter or an association document, to:
6616 1. Properly conduct elections.
6617 2. Give adequate notice of meetings or other actions.
6618 3. Properly conduct meetings.
6619 4. Allow inspection of books and records.
6620 (c) A plan of termination pursuant to s. 718.117.
6621
6622 “Dispute” does not include any disagreement that primarily
6623 involves: title to any unit or common element; the
6624 interpretation or enforcement of any warranty; the levy of a fee
6625 or assessment, or the collection of an assessment levied against
6626 a party; the eviction or other removal of a tenant from a unit;
6627 alleged breaches of fiduciary duty by one or more directors; or
6628 claims for damages to a unit based upon the alleged failure of
6629 the association to maintain the common elements or common
6630 interest community condominium property.
6631 (2) VOLUNTARY MEDIATION.—Voluntary mediation through
6632 Citizen Dispute Settlement Centers as provided for in s. 44.201
6633 is encouraged.
6634 (3) LEGISLATIVE FINDINGS.—
6635 (a) The Legislature finds that unit owners are frequently
6636 at a disadvantage when litigating against an association.
6637 Specifically, a common interest community condominium
6638 association, with its statutory assessment authority, is often
6639 more able to bear the costs and expenses of litigation than the
6640 unit owner who must rely on his or her own financial resources
6641 to satisfy the costs of litigation against the association.
6642 (b) The Legislature finds that alternative dispute
6643 resolution has been making progress in reducing court dockets
6644 and trials and in offering a more efficient, cost-effective
6645 option to court litigation. However, the Legislature also finds
6646 that alternative dispute resolution should not be used as a
6647 mechanism to encourage the filing of frivolous or nuisance
6648 suits.
6649 (c) There exists a need to develop a flexible means of
6650 alternative dispute resolution that directs disputes to the most
6651 efficient means of resolution.
6652 (d) The high cost and significant delay of circuit court
6653 litigation faced by unit owners in the state can be alleviated
6654 by requiring nonbinding arbitration and mediation in appropriate
6655 cases, thereby reducing delay and attorney attorney’s fees while
6656 preserving the right of either party to have its case heard by a
6657 jury, if applicable, in a court of law.
6658 (4) MANDATORY NONBINDING ARBITRATION AND MEDIATION OF
6659 DISPUTES.—The Division of Common Interest Communities Florida
6660 Condominiums, Timeshares, and Mobile Homes of the Department of
6661 Business and Professional Regulation shall employ full-time
6662 attorneys to act as arbitrators to conduct the arbitration
6663 hearings provided by this chapter. The division may also certify
6664 attorneys who are not employed by the division to act as
6665 arbitrators to conduct the arbitration hearings provided by this
6666 section. No person may be employed by the department as a full
6667 time arbitrator unless he or she is a member in good standing of
6668 The Florida Bar. The department shall adopt rules of procedure
6669 to govern such arbitration hearings including mediation incident
6670 thereto. The decision of an arbitrator shall be final; however,
6671 a decision shall not be deemed final agency action. Nothing in
6672 this provision shall be construed to foreclose parties from
6673 proceeding in a trial de novo unless the parties have agreed
6674 that the arbitration is binding. If judicial proceedings are
6675 initiated, the final decision of the arbitrator shall be
6676 admissible in evidence in the trial de novo.
6677 (a) Prior to the institution of court litigation, a party
6678 to a dispute shall petition the division for nonbinding
6679 arbitration. The petition must be accompanied by a filing fee in
6680 the amount of $50. Filing fees collected under this section must
6681 be used to defray the expenses of the alternative dispute
6682 resolution program.
6683 (b) The petition must recite, and have attached thereto,
6684 supporting proof that the petitioner gave the respondents:
6685 1. Advance written notice of the specific nature of the
6686 dispute;
6687 2. A demand for relief, and a reasonable opportunity to
6688 comply or to provide the relief; and
6689 3. Notice of the intention to file an arbitration petition
6690 or other legal action in the absence of a resolution of the
6691 dispute.
6692
6693 Failure to include the allegations or proof of compliance with
6694 these prerequisites requires dismissal of the petition without
6695 prejudice.
6696 (c) Upon receipt, the petition shall be promptly reviewed
6697 by the division to determine the existence of a dispute and
6698 compliance with the requirements of paragraphs (a) and (b). If
6699 emergency relief is required and is not available through
6700 arbitration, a motion to stay the arbitration may be filed. The
6701 motion must be accompanied by a verified petition alleging facts
6702 that, if proven, would support entry of a temporary injunction,
6703 and if an appropriate motion and supporting papers are filed,
6704 the division may abate the arbitration pending a court hearing
6705 and disposition of a motion for temporary injunction.
6706 (d) Upon determination by the division that a dispute
6707 exists and that the petition substantially meets the
6708 requirements of paragraphs (a) and (b) and any other applicable
6709 rules, a copy of the petition shall be served by the division
6710 upon all respondents.
6711 (e) Before or after the filing of the respondents’ answer
6712 to the petition, any party may request that the arbitrator refer
6713 the case to mediation under this section and any rules adopted
6714 by the division. Upon receipt of a request for mediation, the
6715 division shall promptly contact the parties to determine if
6716 there is agreement that mediation would be appropriate. If all
6717 parties agree, the dispute must be referred to mediation.
6718 Notwithstanding a lack of an agreement by all parties, the
6719 arbitrator may refer a dispute to mediation at any time.
6720 (f) Upon referral of a case to mediation, the parties must
6721 select a mutually acceptable mediator. To assist in the
6722 selection, the arbitrator shall provide the parties with a list
6723 of both volunteer and paid mediators that have been certified by
6724 the division under s. 718.501. If the parties are unable to
6725 agree on a mediator within the time allowed by the arbitrator,
6726 the arbitrator shall appoint a mediator from the list of
6727 certified mediators. If a case is referred to mediation, the
6728 parties shall attend a mediation conference, as scheduled by the
6729 parties and the mediator. If any party fails to attend a duly
6730 noticed mediation conference, without the permission or approval
6731 of the arbitrator or mediator, the arbitrator must impose
6732 sanctions against the party, including the striking of any
6733 pleadings filed, the entry of an order of dismissal or default
6734 if appropriate, and the award of costs and attorneys’ fees
6735 incurred by the other parties. Unless otherwise agreed to by the
6736 parties or as provided by order of the arbitrator, a party is
6737 deemed to have appeared at a mediation conference by the
6738 physical presence of the party or its representative having full
6739 authority to settle without further consultation, provided that
6740 an association may comply by having one or more representatives
6741 present with full authority to negotiate a settlement and
6742 recommend that the board of administration ratify and approve
6743 such a settlement within 5 days from the date of the mediation
6744 conference. The parties shall share equally the expense of
6745 mediation, unless they agree otherwise.
6746 (g) The purpose of mediation as provided for by this
6747 section is to present the parties with an opportunity to resolve
6748 the underlying dispute in good faith, and with a minimum
6749 expenditure of time and resources.
6750 (h) Mediation proceedings must generally be conducted in
6751 accordance with the Florida Rules of Civil Procedure, and these
6752 proceedings are privileged and confidential to the same extent
6753 as court-ordered mediation. Persons who are not parties to the
6754 dispute are not allowed to attend the mediation conference
6755 without the consent of all parties, with the exception of
6756 counsel for the parties and corporate representatives designated
6757 to appear for a party. If the mediator declares an impasse after
6758 a mediation conference has been held, the arbitration proceeding
6759 terminates, unless all parties agree in writing to continue the
6760 arbitration proceeding, in which case the arbitrator’s decision
6761 shall be binding or nonbinding, as agreed upon by the parties;
6762 in the arbitration proceeding, the arbitrator shall not consider
6763 any evidence relating to the unsuccessful mediation except in a
6764 proceeding to impose sanctions for failure to appear at the
6765 mediation conference. If the parties do not agree to continue
6766 arbitration, the arbitrator shall enter an order of dismissal,
6767 and either party may institute a suit in a court of competent
6768 jurisdiction. The parties may seek to recover any costs and
6769 attorney attorneys’ fees incurred in connection with arbitration
6770 and mediation proceedings under this section as part of the
6771 costs and fees that may be recovered by the prevailing party in
6772 any subsequent litigation.
6773 (i) Arbitration shall be conducted according to rules
6774 adopted by the division. The filing of a petition for
6775 arbitration shall toll the applicable statute of limitations.
6776 (j) At the request of any party to the arbitration, the
6777 arbitrator shall issue subpoenas for the attendance of witnesses
6778 and the production of books, records, documents, and other
6779 evidence and any party on whose behalf a subpoena is issued may
6780 apply to the court for orders compelling such attendance and
6781 production. Subpoenas shall be served and shall be enforceable
6782 in the manner provided by the Florida Rules of Civil Procedure.
6783 Discovery may, in the discretion of the arbitrator, be permitted
6784 in the manner provided by the Florida Rules of Civil Procedure.
6785 Rules adopted by the division may authorize any reasonable
6786 sanctions except contempt for a violation of the arbitration
6787 procedural rules of the division or for the failure of a party
6788 to comply with a reasonable nonfinal order issued by an
6789 arbitrator which is not under judicial review.
6790 (k) The arbitration decision shall be presented to the
6791 parties in writing. An arbitration decision is final in those
6792 disputes in which the parties have agreed to be bound. An
6793 arbitration decision is also final if a complaint for a trial de
6794 novo is not filed in a court of competent jurisdiction in which
6795 the common interest community condominium is located within 30
6796 days. The right to file for a trial de novo entitles the parties
6797 to file a complaint in the appropriate trial court for a
6798 judicial resolution of the dispute. The prevailing party in an
6799 arbitration proceeding shall be awarded the costs of the
6800 arbitration and reasonable attorney attorney’s fees in an amount
6801 determined by the arbitrator. Such an award shall include the
6802 costs and reasonable attorney attorney’s fees incurred in the
6803 arbitration proceeding as well as the costs and reasonable
6804 attorney attorney’s fees incurred in preparing for and attending
6805 any scheduled mediation.
6806 (l) The party who files a complaint for a trial de novo
6807 shall be assessed the other party’s arbitration costs, court
6808 costs, and other reasonable costs, including attorney attorney’s
6809 fees, investigation expenses, and expenses for expert or other
6810 testimony or evidence incurred after the arbitration hearing if
6811 the judgment upon the trial de novo is not more favorable than
6812 the arbitration decision. If the judgment is more favorable, the
6813 party who filed a complaint for trial de novo shall be awarded
6814 reasonable court costs and attorney attorney’s fees.
6815 (m) Any party to an arbitration proceeding may enforce an
6816 arbitration award by filing a petition in a court of competent
6817 jurisdiction in which the common interest community condominium
6818 is located. A petition may not be granted unless the time for
6819 appeal by the filing of a complaint for trial de novo has
6820 expired. If a complaint for a trial de novo has been filed, a
6821 petition may not be granted with respect to an arbitration award
6822 that has been stayed. If the petition for enforcement is
6823 granted, the petitioner shall recover reasonable attorney
6824 attorney’s fees and costs incurred in enforcing the arbitration
6825 award. A mediation settlement may also be enforced through the
6826 county or circuit court, as applicable, and any costs and fees
6827 incurred in the enforcement of a settlement agreement reached at
6828 mediation must be awarded to the prevailing party in any
6829 enforcement action.
6830 (5) DISPUTES INVOLVING ELECTION IRREGULARITIES.—Every
6831 arbitration petition received by the division and required to be
6832 filed under this section challenging the legality of the
6833 election of any director of the board of administration must be
6834 handled on an expedited basis in the manner provided by the
6835 division’s rules for recall arbitration disputes.
6836 (6) APPLICABILITY.—This section does not apply to a
6837 nonresidential common interest community condominium unless
6838 otherwise specifically provided for in the documents declaration
6839 of the nonresidential common interest community condominium.
6840 Section 76. Section 718.1256, Florida Statutes, is amended
6841 to read:
6842 718.1256 Common interest communities Condominiums as
6843 residential property.—For the purpose of property and casualty
6844 insurance risk classification, common interest communities
6845 condominiums shall be classed as residential property.
6846 Section 77. Section 718.1265, Florida Statutes, is amended
6847 to read:
6848 718.1265 Association emergency powers.—
6849 (1) To the extent allowed by law and unless specifically
6850 prohibited by the documents declaration of the common interest
6851 community condominium, the articles, or the bylaws of an
6852 association, and consistent with the provisions of s. 617.0830,
6853 the board of administration, in response to damage caused by an
6854 event for which a state of emergency is declared pursuant to s.
6855 252.36 in the locale in which the common interest community
6856 condominium is located, may, but is not required to, exercise
6857 the following powers:
6858 (a) Conduct board meetings and membership meetings with
6859 notice given as is practicable. Such notice may be given in any
6860 practicable manner, including publication, radio, United States
6861 mail, the Internet, public service announcements, and
6862 conspicuous posting on the common interest community condominium
6863 property or any other means the board deems reasonable under the
6864 circumstances. Notice of board decisions may be communicated as
6865 provided in this paragraph.
6866 (b) Cancel and reschedule any association meeting.
6867 (c) Name as assistant officers persons who are not
6868 directors, which assistant officers shall have the same
6869 authority as the executive officers to whom they are assistants
6870 during the state of emergency to accommodate the incapacity or
6871 unavailability of any officer of the association.
6872 (d) Relocate the association’s principal office or
6873 designate alternative principal offices.
6874 (e) Enter into agreements with local counties and
6875 municipalities to assist counties and municipalities with debris
6876 removal.
6877 (f) Implement a disaster plan before or immediately
6878 following the event for which a state of emergency is declared
6879 which may include, but is not limited to, shutting down or off
6880 elevators; electricity; water, sewer, or security systems; or
6881 air conditioners.
6882 (g) Based upon advice of emergency management officials or
6883 upon the advice of licensed professionals retained by the board,
6884 determine any portion of the common interest community
6885 condominium property unavailable for entry or occupancy by unit
6886 owners, family members, tenants, guests, agents, or invitees to
6887 protect the health, safety, or welfare of such persons.
6888 (h) Require the evacuation of the common interest community
6889 condominium property in the event of a mandatory evacuation
6890 order in the locale in which the common interest community
6891 condominium is located. Should any unit owner or other occupant
6892 of a common interest community condominium fail or refuse to
6893 evacuate the common interest community condominium property
6894 where the board has required evacuation, the association shall
6895 be immune from liability or injury to persons or property
6896 arising from such failure or refusal.
6897 (i) Based upon advice of emergency management officials or
6898 upon the advice of licensed professionals retained by the board,
6899 determine whether the common interest community condominium
6900 property can be safely inhabited or occupied. However, such
6901 determination is not conclusive as to any determination of
6902 habitability pursuant to the documents declaration.
6903 (j) Mitigate further damage, including taking action to
6904 contract for the removal of debris and to prevent or mitigate
6905 the spread of fungus, including, but not limited to, mold or
6906 mildew, by removing and disposing of wet drywall, insulation,
6907 carpet, cabinetry, or other fixtures on or within the common
6908 interest community condominium property, even if the unit owner
6909 is obligated by the documents declaration or law to insure or
6910 replace those fixtures and to remove personal property from a
6911 unit.
6912 (k) Contract, on behalf of any unit owner or owners, for
6913 items or services for which the owners are otherwise
6914 individually responsible, but which are necessary to prevent
6915 further damage to the common interest community condominium
6916 property. In such event, the unit owner or owners on whose
6917 behalf the board has contracted are responsible for reimbursing
6918 the association for the actual costs of the items or services,
6919 and the association may use its lien authority provided by s.
6920 718.116 to enforce collection of the charges. Without
6921 limitation, such items or services may include the drying of
6922 units, the boarding of broken windows or doors, and the
6923 replacement of damaged air conditioners or air handlers to
6924 provide climate control in the units or other portions of the
6925 property.
6926 (l) Regardless of any provision to the contrary and even if
6927 such authority does not specifically appear in the documents
6928 declaration of the common interest community condominium,
6929 articles, or bylaws of the association, levy special assessments
6930 without a vote of the owners.
6931 (m) Without unit owners’ approval, borrow money and pledge
6932 association assets as collateral to fund emergency repairs and
6933 carry out the duties of the association when operating funds are
6934 insufficient. This paragraph does not limit the general
6935 authority of the association to borrow money, subject to such
6936 restrictions as are contained in the documents declaration of
6937 the common interest community condominium, articles, or bylaws
6938 of the association.
6939 (2) The special powers authorized under subsection (1)
6940 shall be limited to that time reasonably necessary to protect
6941 the health, safety, and welfare of the association and the unit
6942 owners and the unit owners’ family members, tenants, guests,
6943 agents, or invitees and shall be reasonably necessary to
6944 mitigate further damage and make emergency repairs.
6945 Section 78. Section 718.127, Florida Statutes, is amended
6946 to read:
6947 718.127 Receivership notification.—Upon the appointment of
6948 a receiver by a court for any reason relating to a common
6949 interest community condominium association, the court shall
6950 direct the receiver to provide to all unit owners written notice
6951 of his or her appointment as receiver. Such notice shall be
6952 mailed or delivered within 10 days after the appointment. Notice
6953 by mail to a unit owner shall be sent to the address used by the
6954 county property appraiser for notice to the unit owner.
6955 Section 79. Section 719.114, Florida Statutes, is
6956 transferred and renumbered as section 718.129, Florida Statutes.
6957 Section 80. Section 718.202, Florida Statutes, is amended
6958 to read:
6959 718.202 Sales or reservation deposits prior to closing.—
6960 (1) If a developer contracts to sell a common interest
6961 community condominium parcel and the construction, furnishing,
6962 and landscaping of the property submitted or proposed to be
6963 submitted to common interest community condominium ownership has
6964 not been substantially completed in accordance with the plans
6965 and specifications and representations made by the developer in
6966 the disclosures required by this chapter, the developer shall
6967 pay into an escrow account all payments up to 10 percent of the
6968 sale price received by the developer from the buyer towards the
6969 sale price. The escrow agent shall give to the purchaser a
6970 receipt for the deposit, upon request. In lieu of the foregoing,
6971 the division director has the discretion to accept other
6972 assurances, including, but not limited to, a surety bond or an
6973 irrevocable letter of credit in an amount equal to the escrow
6974 requirements of this section. Default determinations and refund
6975 of deposits shall be governed by the escrow release provision of
6976 this subsection. Funds shall be released from escrow as follows:
6977 (a) If a buyer properly terminates the contract pursuant to
6978 its terms or pursuant to this chapter, the funds shall be paid
6979 to the buyer together with any interest earned.
6980 (b) If the buyer defaults in the performance of his or her
6981 obligations under the contract of purchase and sale, the funds
6982 shall be paid to the developer together with any interest
6983 earned.
6984 (c) If the contract does not provide for the payment of any
6985 interest earned on the escrowed funds, interest shall be paid to
6986 the developer at the closing of the transaction.
6987 (d) If the funds of a buyer have not been previously
6988 disbursed in accordance with the provisions of this subsection,
6989 they may be disbursed to the developer by the escrow agent at
6990 the closing of the transaction, unless prior to the disbursement
6991 the escrow agent receives from the buyer written notice of a
6992 dispute between the buyer and developer.
6993 (2) All payments which are in excess of the 10 percent of
6994 the sale price described in subsection (1) and which have been
6995 received prior to completion of construction by the developer
6996 from the buyer on a contract for purchase of a common interest
6997 community condominium parcel shall be held in a special escrow
6998 account established as provided in subsection (1) and controlled
6999 by an escrow agent and may not be used by the developer prior to
7000 closing the transaction, except as provided in subsection (3) or
7001 except for refund to the buyer. If the money remains in this
7002 special account for more than 3 months and earns interest, the
7003 interest shall be paid as provided in subsection (1).
7004 (3) If the contract for sale of the common interest
7005 community condominium unit so provides, the developer may
7006 withdraw escrow funds in excess of 10 percent of the purchase
7007 price from the special account required by subsection (2) when
7008 the construction of improvements has begun. He or she may use
7009 the funds in the actual construction and development of the
7010 common interest community condominium property in which the unit
7011 to be sold is located. However, no part of these funds may be
7012 used for salaries, commissions, or expenses of salespersons or
7013 for advertising purposes. A contract which permits use of the
7014 advance payments for these purposes shall include the following
7015 legend conspicuously printed or stamped in boldfaced type on the
7016 first page of the contract and immediately above the place for
7017 the signature of the buyer: ANY PAYMENT IN EXCESS OF 10 PERCENT
7018 OF THE PURCHASE PRICE MADE TO DEVELOPER PRIOR TO CLOSING
7019 PURSUANT TO THIS CONTRACT MAY BE USED FOR CONSTRUCTION PURPOSES
7020 BY THE DEVELOPER.
7021 (4) The term “completion of construction” means issuance of
7022 a certificate of occupancy for the entire building or
7023 improvement, or the equivalent authorization issued by the
7024 governmental body having jurisdiction, and, in a jurisdiction
7025 where no certificate of occupancy or equivalent authorization is
7026 issued, it means substantial completion of construction,
7027 finishing, and equipping of the building or improvements
7028 according to the plans and specifications.
7029 (5) The failure to comply with the provisions of this
7030 section renders the contract voidable by the buyer, and, if
7031 voided, all sums deposited or advanced under the contract shall
7032 be refunded with interest at the highest rate then being paid on
7033 savings accounts, excluding certificates of deposit, by savings
7034 and loan associations in the area in which the common interest
7035 community condominium property is located.
7036 (6) If a developer enters into a reservation agreement, the
7037 developer shall pay into an escrow account all reservation
7038 deposit payments. Reservation deposits shall be payable to the
7039 escrow agent, who shall give to the prospective purchaser a
7040 receipt for the deposit, acknowledging that the deposit is being
7041 held pursuant to the requirements of this subsection. The funds
7042 may be placed in either interest-bearing or non-interest-bearing
7043 accounts, provided that the funds shall at all reasonable times
7044 be available for withdrawal in full by the escrow agent. The
7045 developer shall maintain separate records for each common
7046 interest community condominium or proposed common interest
7047 community condominium for which deposits are being accepted.
7048 Upon written request to the escrow agent by the prospective
7049 purchaser or developer, the funds shall be immediately and
7050 without qualification refunded in full to the prospective
7051 purchaser. Upon such refund, any interest shall be paid to the
7052 prospective purchaser, unless otherwise provided in the
7053 reservation agreement. A reservation deposit shall not be
7054 released directly to the developer except as a down payment on
7055 the purchase price simultaneously with or subsequent to the
7056 execution of a contract. Upon the execution of a purchase
7057 agreement for a unit, any funds paid by the purchaser as a
7058 deposit to reserve the unit pursuant to a reservation agreement,
7059 and any interest thereon, shall cease to be subject to the
7060 provisions of this subsection and shall instead be subject to
7061 the provisions of subsections (1)-(5).
7062 (7) Any developer who willfully fails to comply with the
7063 provisions of this section concerning establishment of an escrow
7064 account, deposits of funds into escrow, and withdrawal of funds
7065 from escrow is guilty of a felony of the third degree,
7066 punishable as provided in s. 775.082, s. 775.083, or s. 775.084,
7067 or the successor thereof. The failure to establish an escrow
7068 account or to place funds in an escrow account is prima facie
7069 evidence of an intentional and purposeful violation of this
7070 section.
7071 (8) Every escrow account required by this section shall be
7072 established with a bank; a savings and loan association; an
7073 attorney who is a member of The Florida Bar; a real estate
7074 broker registered under chapter 475; a title insurer authorized
7075 to do business in this state, acting through either its
7076 employees or a title insurance agent licensed under chapter 626;
7077 or any financial lending institution having a net worth in
7078 excess of $5 million. The escrow agent shall not be located
7079 outside the state unless, pursuant to the escrow agreement, the
7080 escrow agent submits to the jurisdiction of the division and the
7081 courts of this state for any cause of action arising from the
7082 escrow. Every escrow agent shall be independent of the
7083 developer, and no developer or any officer, director, affiliate,
7084 subsidiary, or employee of a developer may serve as escrow
7085 agent. Escrow funds may be invested only in securities of the
7086 United States or an agency thereof or in accounts in
7087 institutions the deposits of which are insured by an agency of
7088 the United States.
7089 (9) Any developer who is subject to the provisions of this
7090 section is not subject to the provisions of s. 501.1375.
7091 (10) Nothing in this section shall be construed to require
7092 any filing with the division in the case of common interest
7093 communities condominiums other than residential common interest
7094 communities condominiums.
7095 (11) All funds deposited into escrow pursuant to subsection
7096 (1) or subsection (2) may be held in one or more escrow accounts
7097 by the escrow agent. If only one escrow account is used, the
7098 escrow agent must maintain separate accounting records for each
7099 purchaser and for amounts separately covered under subsections
7100 (1) and (2) and, if applicable, released to the developer
7101 pursuant to subsection (3). Separate accounting by the escrow
7102 agent of the escrow funds constitutes compliance with this
7103 section even if the funds are held by the escrow agent in a
7104 single escrow account. It is the intent of this subsection to
7105 clarify existing law.
7106 Section 81. Section 718.203, Florida Statutes, is amended
7107 to read:
7108 718.203 Warranties.—
7109 (1) The developer shall be deemed to have granted to the
7110 purchaser of each unit an implied warranty of fitness and
7111 merchantability for the purposes or uses intended as follows:
7112 (a) As to each unit, a warranty for 3 years commencing with
7113 the completion of the building containing the unit.
7114 (b) As to the personal property that is transferred with,
7115 or appurtenant to, each unit, a warranty which is for the same
7116 period as that provided by the manufacturer of the personal
7117 property, commencing with the date of closing of the purchase or
7118 the date of possession of the unit, whichever is earlier.
7119 (c) As to all other improvements for the use of unit
7120 owners, a 3-year warranty commencing with the date of completion
7121 of the improvements.
7122 (d) As to all other personal property for the use of unit
7123 owners, a warranty which shall be the same as that provided by
7124 the manufacturer of the personal property.
7125 (e) As to the roof and structural components of a building
7126 or other improvements and as to mechanical, electrical, and
7127 plumbing elements serving improvements or a building, except
7128 mechanical elements serving only one unit, a warranty for a
7129 period beginning with the completion of construction of each
7130 building or improvement and continuing for 3 years thereafter or
7131 1 year after owners other than the developer obtain control of
7132 the association, whichever occurs last, but in no event more
7133 than 5 years.
7134 (f) As to all other property which is conveyed with a unit,
7135 a warranty to the initial purchaser of each unit for a period of
7136 1 year from the date of closing of the purchase or the date of
7137 possession, whichever occurs first.
7138 (2) The contractor, and all subcontractors and suppliers,
7139 grant to the developer and to the purchaser of each unit implied
7140 warranties of fitness as to the work performed or materials
7141 supplied by them as follows:
7142 (a) For a period of 3 years from the date of completion of
7143 construction of a building or improvement, a warranty as to the
7144 roof and structural components of the building or improvement
7145 and mechanical and plumbing elements serving a building or an
7146 improvement, except mechanical elements serving only one unit.
7147 (b) For a period of 1 year after completion of all
7148 construction, a warranty as to all other improvements and
7149 materials.
7150 (3) “Completion of a building or improvement” means
7151 issuance of a certificate of occupancy, whether temporary or
7152 otherwise, that allows for occupancy or use of the entire
7153 building or improvement, or an equivalent authorization issued
7154 by the governmental body having jurisdiction. In jurisdictions
7155 where no certificate of occupancy or equivalent authorization is
7156 issued, the term means substantial completion of construction,
7157 finishing, and equipping of the building or improvement
7158 according to the plans and specifications.
7159 (4) These warranties are conditioned upon routine
7160 maintenance being performed, unless the maintenance is an
7161 obligation of the developer or a developer-controlled
7162 association.
7163 (5) The warranties provided by this section shall inure to
7164 the benefit of each owner and his or her successor owners and to
7165 the benefit of the developer.
7166 (6) Nothing in this section affects a common interest
7167 community condominium as to which rights are established by
7168 contracts for sale of 10 percent or more of the units in the
7169 common interest community condominium by the developer to
7170 prospective unit owners prior to July 1, 1974, or as to common
7171 interest community condominium buildings on which construction
7172 has been commenced prior to July 1, 1974.
7173 (7) Residential common interest communities condominiums
7174 may be covered by an insured warranty program underwritten by a
7175 licensed insurance company registered in this state, provided
7176 that such warranty program meets the minimum requirements of
7177 this chapter; to the degree that such warranty program does not
7178 meet the minimum requirements of this chapter, such requirements
7179 shall apply.
7180 Section 82. Section 718.301, Florida Statutes, is amended
7181 to read:
7182 718.301 Transfer of association control; claims of defect
7183 by association.—
7184 (1) If unit owners other than the developer own 15 percent
7185 or more of the units in a common interest community condominium
7186 that will be operated ultimately by an association, the unit
7187 owners other than the developer are entitled to elect at least
7188 one-third of the members of the board of administration of the
7189 association. Unit owners other than the developer are entitled
7190 to elect at least a majority of the members of the board of
7191 administration of an association, upon the first to occur of any
7192 of the following events:
7193 (a) Three years after 50 percent of the units that will be
7194 operated ultimately by the association have been conveyed to
7195 purchasers;
7196 (b) Three months after 90 percent of the units that will be
7197 operated ultimately by the association have been conveyed to
7198 purchasers;
7199 (c) When all the units that will be operated ultimately by
7200 the association have been completed, some of them have been
7201 conveyed to purchasers, and none of the others are being offered
7202 for sale by the developer in the ordinary course of business;
7203 (d) When some of the units have been conveyed to purchasers
7204 and none of the others are being constructed or offered for sale
7205 by the developer in the ordinary course of business;
7206 (e) When the developer files a petition seeking protection
7207 in bankruptcy;
7208 (f) When a receiver for the developer is appointed by a
7209 circuit court and is not discharged within 30 days after such
7210 appointment, unless the court determines within 30 days after
7211 appointment of the receiver that transfer of control would be
7212 detrimental to the association or its members; or
7213 (g) Seven years after the date of the recording of the
7214 certificate of a surveyor and mapper pursuant to s. 718.104(6)
7215 718.104(4)(e) or the recording of an instrument that transfers
7216 title to a unit in the common interest community condominium
7217 which is not accompanied by a recorded assignment of developer
7218 rights in favor of the grantee of such unit, whichever occurs
7219 first; or, in the case of an association that may ultimately
7220 operate more than one common interest community, 7 years after
7221 the date of the recording of the certificate of a surveyor and
7222 mapper pursuant to s. 718.104(6) or the recording of an
7223 instrument that transfers title to a unit in the common interest
7224 community which is not accompanied by a recorded assignment of
7225 developer rights in favor of the grantee of such unit, whichever
7226 occurs first, for the first common interest community it
7227 operates; or, in the case of an association operating a phase
7228 common interest community created pursuant to s. 718.403
7229 condominium, 7 years after the date of the recording of the
7230 certificate of a surveyor and mapper pursuant to s. 718.104(6)
7231 718.104(4)(e) or the recording of an instrument that transfers
7232 title to a unit in the common interest community which is not
7233 accompanied by a recorded assignment of developer rights in
7234 favor of the grantee of such unit, whichever occurs first, for
7235 the first condominium it operates; or, in the case of an
7236 association operating a phase condominium created pursuant to s.
7237 718.403, 7 years after the date of the recording of the
7238 certificate of a surveyor and mapper pursuant to s.
7239 718.104(4)(e) or the recording of an instrument that transfers
7240 title to a unit which is not accompanied by a recorded
7241 assignment of developer rights in favor of the grantee of such
7242 unit, whichever occurs first.
7243
7244 The developer is entitled to elect at least one member of the
7245 board of administration of an association as long as the
7246 developer holds for sale in the ordinary course of business at
7247 least 5 percent, in common interest communities condominiums
7248 with fewer than 500 units, and 2 percent, in common interest
7249 communities condominiums with more than 500 units, of the units
7250 in a common interest community condominium operated by the
7251 association. After the developer relinquishes control of the
7252 association, the developer may exercise the right to vote any
7253 developer-owned units in the same manner as any other unit owner
7254 except for purposes of reacquiring control of the association or
7255 selecting the majority members of the board of administration.
7256 (2) Within 75 days after the unit owners other than the
7257 developer are entitled to elect a member or members of the board
7258 of administration of an association, the association shall call,
7259 and give not less than 60 days’ notice of an election for the
7260 members of the board of administration. The election shall
7261 proceed as provided in s. 718.112(2)(d). The notice may be given
7262 by any unit owner if the association fails to do so. Upon
7263 election of the first unit owner other than the developer to the
7264 board of administration, the developer shall forward to the
7265 division the name and mailing address of the unit owner board
7266 member.
7267 (3) If a developer holds units for sale in the ordinary
7268 course of business, none of the following actions may be taken
7269 without approval in writing by the developer:
7270 (a) Assessment of the developer as a unit owner for capital
7271 improvements.
7272 (b) Any action by the association that would be detrimental
7273 to the sales of units by the developer. However, an increase in
7274 assessments for common expenses without discrimination against
7275 the developer shall not be deemed to be detrimental to the sales
7276 of units.
7277 (4) At the time that unit owners other than the developer
7278 elect a majority of the members of the board of administration
7279 of an association, the developer shall relinquish control of the
7280 association, and the unit owners shall accept control.
7281 Simultaneously, or for the purposes of paragraph (c) not more
7282 than 90 days thereafter, the developer shall deliver to the
7283 association, at the developer’s expense, all property of the
7284 unit owners and of the association which is held or controlled
7285 by the developer, including, but not limited to, the following
7286 items, if applicable, as to each common interest community
7287 condominium operated by the association:
7288 (a)1. The original or a photocopy of the recorded documents
7289 declaration of the common interest community condominium and all
7290 amendments thereto. If a photocopy is provided, it must be
7291 certified by affidavit of the developer or an officer or agent
7292 of the developer as being a complete copy of the actual recorded
7293 documents declaration.
7294 2. A certified copy of the articles of incorporation of the
7295 association or, if the association was created prior to the
7296 effective date of this act and it is not incorporated, copies of
7297 the documents creating the association.
7298 3. A copy of the bylaws.
7299 4. The minute books, including all minutes, and other books
7300 and records of the association, if any.
7301 5. Any house rules and regulations that have been
7302 promulgated.
7303 (b) Resignations of officers and members of the board of
7304 administration who are required to resign because the developer
7305 is required to relinquish control of the association.
7306 (c) The financial records, including financial statements
7307 of the association, and source documents from the incorporation
7308 of the association through the date of turnover. The records
7309 must be audited for the period from the incorporation of the
7310 association or from the period covered by the last audit, if an
7311 audit has been performed for each fiscal year since
7312 incorporation, by an independent certified public accountant.
7313 All financial statements must be prepared in accordance with
7314 generally accepted accounting principles and must be audited in
7315 accordance with generally accepted auditing standards, as
7316 prescribed by the Florida Board of Accountancy, pursuant to
7317 chapter 473. The accountant performing the audit shall examine
7318 to the extent necessary supporting documents and records,
7319 including the cash disbursements and related paid invoices to
7320 determine if expenditures were for association purposes and the
7321 billings, cash receipts, and related records to determine that
7322 the developer was charged and paid the proper amounts of
7323 assessments.
7324 (d) Association funds or control thereof.
7325 (e) All tangible personal property that is property of the
7326 association, which is represented by the developer to be part of
7327 the common elements or which is ostensibly part of the common
7328 elements, and an inventory of that property.
7329 (f) A copy of the plans and specifications utilized in the
7330 construction or remodeling of improvements and the supplying of
7331 equipment to the common interest community condominium and in
7332 the construction and installation of all mechanical components
7333 serving the improvements and the site with a certificate in
7334 affidavit form of the developer or the developer’s agent or an
7335 architect or engineer authorized to practice in this state that
7336 such plans and specifications represent, to the best of his or
7337 her knowledge and belief, the actual plans and specifications
7338 utilized in the construction and improvement of the common
7339 interest community condominium property and for the construction
7340 and installation of the mechanical components serving the
7341 improvements. If the common interest community condominium
7342 property has been declared a common interest community
7343 condominium more than 3 years after the completion of
7344 construction or remodeling of the improvements, the requirements
7345 of this paragraph do not apply.
7346 (g) A list of the names and addresses of all contractors,
7347 subcontractors, and suppliers utilized in the construction or
7348 remodeling of the improvements and in the landscaping of the
7349 common interest community condominium or association property
7350 which the developer had knowledge of at any time in the
7351 development of the common interest community condominium.
7352 (h) Insurance policies.
7353 (i) Copies of any certificates of occupancy that may have
7354 been issued for the common interest community condominium
7355 property.
7356 (j) Any other permits applicable to the common interest
7357 community condominium property which have been issued by
7358 governmental bodies and are in force or were issued within 1
7359 year prior to the date the unit owners other than the developer
7360 took control of the association.
7361 (k) All written warranties of the contractor,
7362 subcontractors, suppliers, and manufacturers, if any, that are
7363 still effective.
7364 (l) A roster of unit owners and their addresses and
7365 telephone numbers, if known, as shown on the developer’s
7366 records.
7367 (m) Leases of the common elements and other leases to which
7368 the association is a party.
7369 (n) Employment contracts or service contracts in which the
7370 association is one of the contracting parties or service
7371 contracts in which the association or the unit owners have an
7372 obligation or responsibility, directly or indirectly, to pay
7373 some or all of the fee or charge of the person or persons
7374 performing the service.
7375 (o) All other contracts to which the association is a
7376 party.
7377 (p) A report included in the official records, under seal
7378 of an architect or engineer authorized to practice in this
7379 state, attesting to required maintenance, useful life, and
7380 replacement costs of the following applicable common elements
7381 comprising a turnover inspection report:
7382 1. Roof.
7383 2. Structure.
7384 3. Fireproofing and fire protection systems.
7385 4. Elevators.
7386 5. Heating and cooling systems.
7387 6. Plumbing.
7388 7. Electrical systems.
7389 8. Swimming pool or spa and equipment.
7390 9. Seawalls.
7391 10. Pavement and parking areas.
7392 11. Drainage systems.
7393 12. Painting.
7394 13. Irrigation systems.
7395 (q) A copy of the certificate of a surveyor and mapper
7396 recorded pursuant to s. 718.104(6) 718.104(4)(e) or the recorded
7397 instrument that transfers title to a unit in the common interest
7398 community condominium which is not accompanied by a recorded
7399 assignment of developer rights in favor of the grantee of such
7400 unit, whichever occurred first.
7401 (5) If, during the period before prior to the time that the
7402 developer relinquishes control of the association pursuant to
7403 subsection (4), any provision of the Common Interest Community
7404 Condominium Act or any rule adopted promulgated thereunder is
7405 violated by the association, the developer is responsible for
7406 such violation and is subject to the administrative action
7407 provided in this chapter for such violation or violations and is
7408 liable for such violation or violations to third parties. This
7409 subsection is intended to clarify existing law.
7410 (6) Before Prior to the developer relinquishes
7411 relinquishing control of the association pursuant to subsection
7412 (4), actions taken by members of the board of administration
7413 designated by the developer are considered actions taken by the
7414 developer, and the developer is responsible to the association
7415 and its members for all such actions.
7416 (7) In any claim against a developer by an association
7417 alleging a defect in design, structural elements, construction,
7418 or any mechanical, electrical, fire protection, plumbing, or
7419 other element that requires a licensed professional for design
7420 or installation under chapter 455, chapter 471, chapter 481,
7421 chapter 489, or chapter 633, such defect must be examined and
7422 certified by an appropriately licensed Florida engineer, design
7423 professional, contractor, or otherwise licensed Florida
7424 individual or entity.
7425 (8) The division has authority to adopt rules pursuant to
7426 the Administrative Procedure Act to ensure the efficient and
7427 effective transition from developer control of a common interest
7428 community condominium to the establishment of a unit-owner
7429 controlled association.
7430 Section 83. Section 718.302, Florida Statutes, is amended
7431 to read:
7432 718.302 Agreements entered into by the association.—
7433 (1) Any grant or reservation made by a declaration, lease,
7434 or other document, and any contract made by an association
7435 before prior to assumption of control of the association by unit
7436 owners other than the developer, which that provides for
7437 operation, maintenance, or management of a common interest
7438 community condominium association or property serving the unit
7439 owners of a common interest community condominium shall be fair
7440 and reasonable, and such grant, reservation, or contract may be
7441 canceled by unit owners other than the developer:
7442 (a) If the association operates only one common interest
7443 community condominium and the unit owners other than the
7444 developer have assumed control of the association, or if unit
7445 owners other than the developer own not less than 75 percent of
7446 the voting interests in the common interest community
7447 condominium, the cancellation shall be by concurrence of the
7448 owners of not less than 75 percent of the voting interests other
7449 than the voting interests owned by the developer. If a grant,
7450 reservation, or contract is so canceled and the unit owners
7451 other than the developer have not assumed control of the
7452 association, the association shall make a new contract or
7453 otherwise provide for maintenance, management, or operation in
7454 lieu of the canceled obligation, at the direction of the owners
7455 of not less than a majority of the voting interests in the
7456 common interest community condominium other than the voting
7457 interests owned by the developer.
7458 (b) If the association operates more than one common
7459 interest community condominium and the unit owners other than
7460 the developer have not assumed control of the association, and
7461 if unit owners other than the developer own at least 75 percent
7462 of the voting interests in a common interest community
7463 condominium operated by the association, any grant, reservation,
7464 or contract for maintenance, management, or operation of
7465 buildings containing the units in that common interest community
7466 condominium or of improvements used only by unit owners of that
7467 common interest community condominium may be canceled by
7468 concurrence of the owners of at least 75 percent of the voting
7469 interests in the common interest community condominium other
7470 than the voting interests owned by the developer. No grant,
7471 reservation, or contract for maintenance, management, or
7472 operation of recreational areas or any other property serving
7473 more than one common interest community condominium, and
7474 operated by more than one association, may be canceled except
7475 pursuant to paragraph (d).
7476 (c) If the association operates more than one common
7477 interest community condominium and the unit owners other than
7478 the developer have assumed control of the association, the
7479 cancellation shall be by concurrence of the owners of not less
7480 than 75 percent of the total number of voting interests in all
7481 common interest communities condominiums operated by the
7482 association other than the voting interests owned by the
7483 developer.
7484 (d) If the owners of units in a common interest community
7485 condominium have the right to use property in common with owners
7486 of units in other common interest communities condominiums and
7487 those common interest communities condominiums are operated by
7488 more than one association, no grant, reservation, or contract
7489 for maintenance, management, or operation of the property
7490 serving more than one common interest community condominium may
7491 be canceled until unit owners other than the developer have
7492 assumed control of all of the associations operating the common
7493 interest communities condominiums that are to be served by the
7494 recreational area or other property, after which cancellation
7495 may be effected by concurrence of the owners of not less than 75
7496 percent of the total number of voting interests in those common
7497 interest communities condominiums other than voting interests
7498 owned by the developer.
7499 (2) Any grant or reservation made by a declaration, lease,
7500 or other document, or any contract made by the developer or
7501 association prior to the time when unit owners other than the
7502 developer elect a majority of the board of administration, which
7503 grant, reservation, or contract requires the association to
7504 purchase common interest community condominium property or to
7505 lease common interest community condominium property to another
7506 party, shall be deemed ratified unless rejected by a majority of
7507 the voting interests of unit owners other than the developer
7508 within 18 months after unit owners other than the developer
7509 elect a majority of the board of administration. This subsection
7510 does not apply to any grant or reservation made by documents a
7511 declaration whereby persons other than the developer or the
7512 developer’s heirs, assigns, affiliates, directors, officers, or
7513 employees are granted the right to use the common interest
7514 community condominium property, so long as such persons are
7515 obligated to pay, at a minimum, a proportionate share of the
7516 cost associated with such property.
7517 (3) Any grant or reservation made by documents a
7518 declaration, a lease, or other document, and any contract made
7519 by an association, whether before or after assumption of control
7520 of the association by unit owners other than the developer, that
7521 provides for operation, maintenance, or management of a common
7522 interest community condominium association or property serving
7523 the unit owners of a common interest community condominium shall
7524 not be in conflict with the powers and duties of the association
7525 or the rights of the unit owners as provided in this chapter.
7526 This subsection is intended only as a clarification of existing
7527 law.
7528 (4) Any grant or reservation made by documents a
7529 declaration, a lease, or other document, and any contract made
7530 by an association prior to assumption of control of the
7531 association by unit owners other than the developer, shall be
7532 fair and reasonable.
7533 (5) It is declared that the public policy of this state
7534 prohibits the inclusion or enforcement of escalation clauses in
7535 management contracts for common interest communities
7536 condominiums, and such clauses are hereby declared void for
7537 public policy. For the purposes of this section, an escalation
7538 clause is any clause in a common interest community condominium
7539 management contract which provides that the fee under the
7540 contract shall increase at the same percentage rate as any
7541 nationally recognized and conveniently available commodity or
7542 consumer price index.
7543 (6) Any action to compel compliance with the provisions of
7544 this section or of s. 718.301 may be brought pursuant to the
7545 summary procedure provided for in s. 51.011. In any such action
7546 brought to compel compliance with the provisions of s. 718.301,
7547 the prevailing party is entitled to recover reasonable attorney
7548 attorney’s fees.
7549 Section 84. Section 718.3025, Florida Statutes, is amended
7550 to read:
7551 718.3025 Agreements for operation, maintenance, or
7552 management of common interest communities condominiums; specific
7553 requirements.—
7554 (1) No written contract between a party contracting to
7555 provide maintenance or management services and an association
7556 which contract provides for operation, maintenance, or
7557 management of a common interest community condominium
7558 association or property serving the unit owners of a common
7559 interest community condominium shall be valid or enforceable
7560 unless the contract:
7561 (a) Specifies the services, obligations, and
7562 responsibilities of the party contracting to provide maintenance
7563 or management services to the unit owners.
7564 (b) Specifies those costs incurred in the performance of
7565 those services, obligations, or responsibilities which are to be
7566 reimbursed by the association to the party contracting to
7567 provide maintenance or management services.
7568 (c) Provides an indication of how often each service,
7569 obligation, or responsibility is to be performed, whether stated
7570 for each service, obligation, or responsibility or in categories
7571 thereof.
7572 (d) Specifies a minimum number of personnel to be employed
7573 by the party contracting to provide maintenance or management
7574 services for the purpose of providing service to the
7575 association.
7576 (e) Discloses any financial or ownership interest that
7577 which the developer, if the developer is in control of the
7578 association, holds with regard to the party contracting to
7579 provide maintenance or management services.
7580 (f) Discloses any financial or ownership interest a board
7581 member or any party providing maintenance or management services
7582 to the association holds with the contracting party.
7583 (2) If In any case in which the party contracting to
7584 provide maintenance or management services fails to provide such
7585 services in accordance with the contract, the association is
7586 authorized to procure such services from some other party and
7587 shall be entitled to collect any fees or charges paid for
7588 service performed by another party from the party contracting to
7589 provide maintenance or management services.
7590 (3) Any services or obligations not stated on the face of
7591 the contract shall be unenforceable.
7592 (4) Notwithstanding the fact that certain vendors contract
7593 with associations to maintain equipment or property that which
7594 is made available to serve unit owners, it is the intent of the
7595 Legislature that this section applies to contracts for
7596 maintenance or management services for which the association
7597 pays compensation. This section does not apply to contracts for
7598 services or property made available for the convenience of unit
7599 owners by lessees or licensees of the association, such as coin
7600 operated laundry, food, soft drink, or telephone vendors; cable
7601 television operators; retail store operators; businesses;
7602 restaurants; or similar vendors.
7603 Section 85. Section 718.3026, Florida Statutes, is amended
7604 to read:
7605 718.3026 Contracts for products and services; in writing;
7606 bids; exceptions.—Associations with 10 or fewer units may opt
7607 out of the provisions of this section if two-thirds of the unit
7608 owners vote to do so, which opt-out may be accomplished by a
7609 proxy specifically setting forth the exception from this
7610 section.
7611 (1) All contracts as further described herein or any
7612 contract that is not to be fully performed within 1 year after
7613 the making thereof, for the purchase, lease, or renting of
7614 materials or equipment to be used by the association in
7615 accomplishing its purposes under this chapter, and all contracts
7616 for the provision of services, shall be in writing. If a
7617 contract for the purchase, lease, or renting of materials or
7618 equipment, or for the provision of services, requires payment by
7619 the association on behalf of any common interest community
7620 condominium operated by the association in the aggregate that
7621 exceeds 5 percent of the total annual budget of the association,
7622 including reserves, the association shall obtain competitive
7623 bids for the materials, equipment, or services. Nothing
7624 contained herein shall be construed to require the association
7625 to accept the lowest bid.
7626 (2)(a) Notwithstanding the foregoing, contracts with
7627 employees of the association, and contracts for attorney,
7628 accountant, architect, community association manager, timeshare
7629 management firm, engineering, and landscape architect services
7630 are not subject to the provisions of this section.
7631 (b) Nothing contained herein is intended to limit the
7632 ability of an association to obtain needed products and services
7633 in an emergency.
7634 (c) This section shall not apply if the business entity
7635 with which the association desires to enter into a contract is
7636 the only source of supply within the county serving the
7637 association.
7638 (d) Nothing contained herein shall excuse a party
7639 contracting to provide maintenance or management services from
7640 compliance with s. 718.3025.
7641 (3) As to any contract or other transaction between an
7642 association and one or more of its directors or any other
7643 corporation, firm, association, or entity in which one or more
7644 of its directors are directors or officers or are financially
7645 interested:
7646 (a) The association shall comply with the requirements of
7647 s. 617.0832.
7648 (b) The disclosures required by s. 617.0832 shall be
7649 entered into the written minutes of the meeting.
7650 (c) Approval of the contract or other transaction shall
7651 require an affirmative vote of two-thirds of the directors
7652 present.
7653 (d) At the next regular or special meeting of the members,
7654 the existence of the contract or other transaction shall be
7655 disclosed to the members. Upon motion of any member, the
7656 contract or transaction shall be brought up for a vote and may
7657 be canceled by a majority vote of the members present. Should
7658 the members cancel the contract, the association shall only be
7659 liable for the reasonable value of goods and services provided
7660 up to the time of cancellation and shall not be liable for any
7661 termination fee, liquidated damages, or other form of penalty
7662 for such cancellation.
7663 Section 86. Subsections (1), (4), (5), and (6), of section
7664 718.303, Florida Statutes, are amended to read:
7665 718.303 Obligations of owners and occupants; remedies.—
7666 (1) Each unit owner, each tenant and other invitee, and
7667 each association is governed by, and must comply with the
7668 provisions of, this chapter, the declaration, the documents
7669 creating the association, and the association bylaws that which
7670 shall be deemed expressly incorporated into any lease of a unit.
7671 Actions for damages or for injunctive relief, or both, for
7672 failure to comply with these provisions may be brought by the
7673 association or by a unit owner against:
7674 (a) The association.
7675 (b) A unit owner.
7676 (c) Directors designated by the developer, for actions
7677 taken by them before control of the association is assumed by
7678 unit owners other than the developer.
7679 (d) Any director who willfully and knowingly fails to
7680 comply with these provisions.
7681 (e) Any tenant leasing a unit, and any other invitee
7682 occupying a unit.
7683
7684 The prevailing party in any such action or in any action in
7685 which the purchaser claims a right of voidability based upon
7686 contractual provisions as required in s. 718.503(1)(a) is
7687 entitled to recover reasonable attorney attorney’s fees. A unit
7688 owner prevailing in an action between the association and the
7689 unit owner under this section, in addition to recovering his or
7690 her reasonable attorney attorney’s fees, may recover additional
7691 amounts as determined by the court to be necessary to reimburse
7692 the unit owner for his or her share of assessments levied by the
7693 association to fund its expenses of the litigation. This relief
7694 does not exclude other remedies provided by law. Actions arising
7695 under this subsection may not be deemed to be actions for
7696 specific performance.
7697 (4) If a unit owner is more than 60 90 days delinquent in
7698 paying a fee, fine, or other monetary obligation due to the
7699 association, the association may suspend the right of the unit
7700 owner or the unit’s occupant, licensee, or invitee to use common
7701 elements, common facilities, or any other association property
7702 until the fee, fine, or other monetary obligation is paid in
7703 full. This subsection does not apply to limited common elements
7704 intended to be used only by that unit, common elements needed to
7705 access the unit, utility services provided to the unit, parking
7706 spaces, or elevators. The notice and hearing requirements under
7707 subsection (3) do not apply to suspensions imposed under this
7708 subsection.
7709 (5) An association may suspend the voting rights of a unit
7710 or member due to nonpayment of any fee, fine, or other monetary
7711 obligation due to the association which is more than 60 90 days
7712 delinquent. A voting interest or consent right allocated to a
7713 unit or member which has been suspended by the association shall
7714 be subtracted from the total number of voting interests in the
7715 association, which shall be reduced by the number of suspended
7716 voting interests in the association, which shall be reduced by
7717 the number of suspended voting interests when calculating the
7718 total percentage or number of all voting interests available to
7719 take or approve any action, and the suspended voting interests
7720 shall not be considered for any purpose, including, but not
7721 limited to, the percentage or number of voting interests when
7722 calculating the total percentage or number of all voting
7723 interests available to take or approve any action, and the
7724 suspended voting interests shall not be considered for any
7725 purpose, including, but not limited to, the percentage or number
7726 of voting interests necessary to constitute a quorum, the
7727 percentage or number of voting interests required to conduct an
7728 election, or the percentage or number of voting interests
7729 required to approve an action under this chapter or pursuant to
7730 the documents declaration, articles of incorporation, or bylaws.
7731 The suspension ends upon full payment of all obligations
7732 currently due or overdue the association. The notice and hearing
7733 requirements under subsection (3) do not apply to a suspension
7734 imposed under this subsection.
7735 (6) All fines and suspensions imposed pursuant to
7736 subsection (4) or subsection (5) must be approved at a properly
7737 noticed board meeting. Upon approval, the association must
7738 notify the unit owner and, if applicable, the unit’s occupant,
7739 licensee, or invitee by mail or hand delivery.
7740 Section 87. Section 718.401, Florida Statutes, is amended
7741 to read:
7742 718.401 Leaseholds.—
7743 (1) A common interest community condominium may be created
7744 on lands held under lease or may include recreational facilities
7745 or other common elements or commonly used facilities on a
7746 leasehold if, on the date the first unit is conveyed by the
7747 developer to a bona fide purchaser, the lease has an unexpired
7748 term of at least 50 years. However, if the common interest
7749 community condominium constitutes a nonresidential common
7750 interest community condominium or commercial common interest
7751 community condominium, or a timeshare common interest community
7752 condominium created pursuant to chapter 721, the lease shall
7753 have an unexpired term of at least 30 years. If rent under the
7754 lease is payable by the association or by the unit owners, the
7755 lease shall include the following requirements:
7756 (a) The leased land must be identified by a description
7757 that is sufficient to pass title, and the leased personal
7758 property must be identified by a general description of the
7759 items of personal property and the approximate number of each
7760 item of personal property that the developer is committing to
7761 furnish for each room or other facility. In the alternative, the
7762 personal property may be identified by a representation as to
7763 the minimum amount of expenditure that will be made to purchase
7764 the personal property for the facility. Unless the lease is of a
7765 unit, the identification of the land shall be supplemented by a
7766 survey showing the relation of the leased land to the land
7767 included in the common elements. This provision shall not
7768 prohibit adding additional land or personal property in
7769 accordance with the terms of the lease, provided there is no
7770 increase in rent or material increase in maintenance costs to
7771 the individual unit owner.
7772 (b) The lease shall not contain a reservation of the right
7773 of possession or control of the leased property by the lessor or
7774 any person other than unit owners or the association and shall
7775 not create rights to possession or use of the leased property in
7776 any parties other than the association or unit owners of the
7777 common interest community condominium to be served by the leased
7778 property, unless the reservations and rights created are
7779 conspicuously disclosed. Any provision for use of the leased
7780 property by anyone other than unit owners of the common interest
7781 community condominium to be served by the leased property shall
7782 require the other users to pay a fair and reasonable share of
7783 the maintenance and repair obligations and other exactions due
7784 from users of the leased property.
7785 (c) The lease shall state the minimum number of unit owners
7786 that will be required, directly or indirectly, to pay the rent
7787 under the lease and the maximum number of units that will be
7788 served by the leased property. The limitation of the number of
7789 units to be served shall not preclude enlargement of the
7790 facilities leased and an increase in their capacity, if approved
7791 by the association operating the leased property after unit
7792 owners other than the developer have assumed control of the
7793 association. The provisions of this paragraph do not apply if
7794 the lessor is the Government of the United States or this state
7795 or any political subdivision thereof or any agency of any
7796 political subdivision thereof.
7797 (d)1. In any action by the lessor to enforce a lien for
7798 rent payable or in any action by the association or a unit owner
7799 with respect to the obligations of the lessee or the lessor
7800 under the lease, the unit owner or the association may raise any
7801 issue or interpose any defense, legal or equitable, that he or
7802 she or it may have with respect to the lessor’s obligations
7803 under the lease. If the unit owner or the association initiates
7804 any action or interposes any defense other than payment of rent
7805 under the lease, the unit owner or the association shall, upon
7806 service of process upon the lessor, pay into the registry of the
7807 court any allegedly accrued rent and the rent which accrues
7808 during the pendency of the proceeding, when due. If the unit
7809 owner or the association fails to pay the rent into the registry
7810 of the court, the failure constitutes an absolute waiver of the
7811 unit owner’s or association’s defenses other than payment, and
7812 the lessor is entitled to default. The unit owner or the
7813 association shall notify the lessor of any deposits. When the
7814 unit owner or the association has deposited the required funds
7815 into the registry of the court, the lessor may apply to the
7816 court for disbursement of all or part of the funds shown to be
7817 necessary for the payment of taxes, mortgage payments,
7818 maintenance and operating expenses, and other necessary expenses
7819 incident to maintaining and equipping the leased facilities or
7820 necessary for the payment of other expenses arising out of
7821 personal hardship resulting from the loss of rental income from
7822 the leased facilities. The court, after an evidentiary hearing,
7823 may award all or part of the funds on deposit to the lessor for
7824 such purpose. The court shall require the lessor to post bond or
7825 other security, as a condition to the release of funds from the
7826 registry, when the value of the leased land and improvements,
7827 apart from the lease itself, is inadequate to fully secure the
7828 sum of existing encumbrances on the leased property and the
7829 amounts released from the court registry.
7830 2. When the association or unit owners have deposited funds
7831 into the registry of the court pursuant to this subsection and
7832 the unit owners and association have otherwise complied with
7833 their obligations under the lease or agreement, other than
7834 paying rent into the registry of the court rather than to the
7835 lessor, the lessor cannot hold the association or unit owners in
7836 default on their rental payments nor may the lessor file liens
7837 or initiate foreclosure proceedings against unit owners. If the
7838 lessor, in violation of this subsection, attempts such liens or
7839 foreclosures, then the lessor may be liable for damages plus
7840 attorney attorney’s fees and costs that the association or unit
7841 owners incurred in satisfying those liens or foreclosures.
7842 3. Nothing in this paragraph affects litigation commenced
7843 prior to October 1, 1979.
7844 (e) If the lease is of recreational facilities or other
7845 commonly used facilities that are not completed, rent shall not
7846 commence until some of the facilities are completed. Until all
7847 of the facilities leased are completed, rent shall be prorated
7848 and paid only for the completed facilities in the proportion
7849 that the value of the completed facilities bears to the
7850 estimated value, when completed, of all of the facilities that
7851 are leased. The facilities shall be complete when they have been
7852 constructed, finished, and equipped and are available for use.
7853 (f)1. A lease of recreational or other commonly used
7854 facilities entered into by the association or unit owners prior
7855 to the time when the control of the association is turned over
7856 to unit owners other than the developer shall grant to the
7857 lessee an option to purchase the leased property, payable in
7858 cash, on any anniversary date of the beginning of the lease term
7859 after the 10th anniversary, at a price then determined by
7860 agreement. If there is no agreement as to the price, then the
7861 price shall be determined by arbitration conducted pursuant to
7862 chapter 44 or chapter 682. This paragraph shall be applied to
7863 contracts entered into on, before, or after January 1, 1977,
7864 regardless of the duration of the lease.
7865 2. If the lessor wishes to sell his or her interest and has
7866 received a bona fide offer to purchase it, the lessor shall send
7867 the association and each unit owner a copy of the executed
7868 offer. For 90 days following receipt of the offer by the
7869 association or unit owners, the association or unit owners have
7870 the option to purchase the interest on the terms and conditions
7871 in the offer. The option shall be exercised, if at all, by
7872 notice in writing given to the lessor within the 90-day period.
7873 If the association or unit owners do not exercise the option,
7874 the lessor shall have the right, for a period of 60 days after
7875 the 90-day period has expired, to complete the transaction
7876 described in the offer to purchase. If for any reason such
7877 transaction is not concluded within the 60 days, the offer shall
7878 have been abandoned, and the provisions of this subsection shall
7879 be reimposed.
7880 3. The option shall be exercised upon approval by owners of
7881 two-thirds of the units served by the leased property.
7882 4. The provisions of this paragraph do not apply to a
7883 nonresidential common interest community condominium and do not
7884 apply if the lessor is the Government of the United States or
7885 this state or any political subdivision thereof or, in the case
7886 of an underlying land lease, a person or entity that which is
7887 not the developer or directly or indirectly owned or controlled
7888 by the developer and did not obtain, directly or indirectly,
7889 ownership of the leased property from the developer.
7890 (g) The lease or a subordination agreement executed by the
7891 lessor must provide either:
7892 1. That any lien which encumbers a unit for rent or other
7893 moneys or exactions payable is subordinate to any mortgage held
7894 by an institutional lender, or
7895 2. that, upon the foreclosure of any mortgage held by an
7896 institutional lender or upon delivery of a deed in lieu of
7897 foreclosure, the lien for the unit owner’s share of the rent or
7898 other exactions shall not be extinguished but shall be
7899 foreclosed and unenforceable against the mortgagee with respect
7900 to that unit’s share of the rent and other exactions that which
7901 mature or become due and payable on or before the date of the
7902 final judgment of foreclosure, in the event of foreclosure, or
7903 on or before the date of delivery of the deed in lieu of
7904 foreclosure. The lien may, however, automatically and by
7905 operation of the lease or other instrument, reattach to the unit
7906 and secure the payment of the unit’s proportionate share of the
7907 rent or other exactions coming due subsequent to the date of
7908 final decree of foreclosure or the date of delivery of the deed
7909 in lieu of foreclosure. The provisions of this paragraph do not
7910 apply if the lessor is the Government of the United States or
7911 this state or any political subdivision thereof or any agency of
7912 any political subdivision thereof.
7913 (2) Subsection (1) does not apply to residential
7914 cooperatives created prior to January 1, 1977, which are
7915 converted to condominium ownership by the cooperative unit
7916 owners or their association after control of the association has
7917 been transferred to the unit owners if, following the
7918 conversion, the unit owners will be the same persons who were
7919 unit owners of the cooperative and no units are offered for sale
7920 or lease to the public as part of the plan of conversion.
7921 (2)(3) If rent under the lease is a fixed amount for the
7922 full duration of the lease, and the rent thereunder is payable
7923 by a person or persons other than the association or the unit
7924 owners, the division director has the discretion to accept
7925 alternative assurances that which are sufficient to secure the
7926 payment of rent, including, but not limited to, annuities with
7927 an insurance company authorized to do business in this state,
7928 the beneficiary of which shall be the association, or cash
7929 deposits in trust, the beneficiary of which shall be the
7930 association, the which deposit shall be in an amount sufficient
7931 to generate interest sufficient to meet lease payments as they
7932 occur. If alternative assurances are accepted by the division
7933 director, the following provisions are applicable:
7934 (a) Disclosures contemplated by paragraph (1)(b), if not
7935 contained within the lease, may be made by the developer.
7936 (b) Disclosures as to the minimum number of unit owners
7937 that will be required, directly or indirectly, to pay the rent
7938 under the lease and the maximum number of units that will be
7939 served by the leased property, if not contained in the lease,
7940 may be stated by the developer.
7941 (c) The provisions of paragraphs (1)(d) and (e) apply but
7942 are not required to be stated in the lease.
7943 (d) The provisions of paragraph (1)(g) do not apply.
7944 Section 88. Section 718.4015, Florida Statutes, is amended
7945 to read:
7946 718.4015 Common interest community Condominium leases;
7947 escalation clauses.—
7948 (1) It is declared that the public policy of this state
7949 prohibits the inclusion or enforcement of escalation clauses in
7950 land leases or other leases or agreements for recreational
7951 facilities, land, or other commonly used facilities serving
7952 residential common interest communities condominiums, and such
7953 clauses are hereby declared void for public policy. For the
7954 purposes of this section, an escalation clause is any clause in
7955 a common interest community condominium lease or agreement which
7956 provides that the rental under the lease or agreement shall
7957 increase at the same percentage rate as any nationally
7958 recognized and conveniently available commodity or consumer
7959 price index.
7960 (2) This public policy prohibits the inclusion or
7961 enforcement of such escalation clauses in leases related to
7962 common interest communities if condominiums for which the
7963 documents declaration of the common interest community
7964 condominium was recorded on or after June 4, 1975; it prohibits
7965 the enforcement of escalation clauses in leases related to
7966 common interest communities if condominiums for which the
7967 documents declaration of the common interest community
7968 condominium was recorded before prior to June 4, 1975, but which
7969 have been refused enforcement on the grounds that the parties
7970 agreed to be bound by subsequent amendments to the Florida
7971 Statutes or which have been found to be void because of a
7972 finding that such lease is unconscionable or which have been
7973 refused enforcement on the basis of the application of former s.
7974 711.231 or former s. 718.401(8); and it prohibits any further
7975 escalation of rental fees after October 1, 1988, pursuant to
7976 escalation clauses in leases related to common interest
7977 communities if condominiums for which the declaration was
7978 recorded before prior to June 4, 1975.
7979 (3) The provisions of this section do not apply if the
7980 lessor is the Government of the United States or this state or
7981 any political subdivision thereof or any agency of any political
7982 subdivision thereof.
7983 Section 89. Section 718.402, Florida Statutes, is amended
7984 to read:
7985 718.402 Conversion of existing improvements to common
7986 interest community condominium.—A developer may create a common
7987 interest community condominium by converting existing,
7988 previously occupied improvements to such ownership by complying
7989 with part I of this chapter. A developer of a residential common
7990 interest community condominium must also comply with part VI of
7991 this chapter, but the failure to comply will not affect the
7992 validity of the common interest community condominium.
7993 Section 90. Section 718.403, Florida Statutes, is amended
7994 to read:
7995 718.403 Phase common interest communities condominiums.—
7996 (1) Notwithstanding the provisions of s. 718.110, a
7997 developer may develop a common interest community condominium in
7998 phases, if the original documents declaration of a common
7999 interest community condominium submitting the initial phase to
8000 common interest community condominium ownership or an amendment
8001 to the documents declaration which has been approved by all of
8002 the unit owners and unit mortgagees provides for and describes
8003 in detail all anticipated phases; the impact, if any, which the
8004 completion of subsequent phases would have upon the initial
8005 phase; and the time period within which all phases must be added
8006 to the common interest community condominium and comply with the
8007 requirements of this section and at the end of which the right
8008 to add additional phases expires.
8009 (a) All phases must be added to the common interest
8010 community condominium within 7 years after the date of the
8011 recording of the certificate of a surveyor and mapper pursuant
8012 to s. 718.104(6) 718.104(4)(e) or the recording of an instrument
8013 that transfers title to a unit in the common interest community
8014 condominium which is not accompanied by a recorded assignment of
8015 developer rights in favor of the grantee of such unit, whichever
8016 occurs first, unless the unit owners vote to approve an
8017 amendment extending the 7-year period pursuant to paragraph (b).
8018 (b) An amendment to extend the 7-year period shall require
8019 the approval of the owners necessary to amend the common
8020 interest community documents declaration of condominium pursuant
8021 to s. 718.110(1) 718.110(1)(a). An extension of the 7-year
8022 period may be submitted for approval only during the last 3
8023 years of the 7-year period.
8024 (c) An amendment must describe the time period within which
8025 all phases must be added to the common interest community
8026 condominium, and such time period may not exceed 10 years from
8027 the date of the recording of the certificate of a surveyor and
8028 mapper pursuant to s. 718.104(6) 718.104(4)(e) or the recording
8029 of an instrument that transfers title to a unit in the common
8030 interest community condominium which is not accompanied by a
8031 recorded assignment of developer rights in favor of the grantee
8032 of such unit, whichever occurs first.
8033 (d) An amendment that extends the 7-year period pursuant to
8034 this section is not subject to the requirements of s.
8035 718.110(4).
8036 (2) The original documents declaration of the common
8037 interest community condominium, or an amendment to the
8038 declaration, which amendment has been approved by all unit
8039 owners and unit mortgagees and the developer, shall describe:
8040 (a) The land that which may become part of the common
8041 interest community condominium and the land on which each phase
8042 is to be built. The descriptions shall include metes and bounds
8043 or other legal descriptions of the land for each phase, plot
8044 plans, and surveys. Plot plans, attached as an exhibit, must
8045 show the approximate location of all existing and proposed
8046 buildings and improvements that may ultimately be contained
8047 within the common interest community condominium. The plot plan
8048 may be modified by the developer as to unit or building types
8049 but, in a residential common interest community condominium,
8050 only to the extent that such changes are described in the
8051 declaration. If provided in the declaration, the developer may
8052 make nonmaterial changes in the legal description of a phase.
8053 (b) The minimum and maximum numbers and general size of
8054 units to be included in each phase. The general size may be
8055 expressed in terms of minimum and maximum square feet. In
8056 stating the minimum and maximum numbers of units, the difference
8057 between the minimum and maximum numbers shall not be greater
8058 than 20 percent of the maximum.
8059 (c) Each unit’s percentage of ownership in the common
8060 elements as each phase is added. In lieu of describing specific
8061 percentages, the declaration or amendment may describe a formula
8062 for reallocating each unit’s proportion or percentage of
8063 ownership in the common elements and manner of sharing common
8064 expenses and owning common surplus as additional units are added
8065 to the common interest community condominium by the addition of
8066 any land. The basis for allocating percentage of ownership among
8067 units in added phases shall be consistent with the basis for
8068 allocation made among the units originally in the common
8069 interest community condominium.
8070 (d) The recreational areas and facilities that which will
8071 be owned as common elements by all unit owners and all personal
8072 property to be provided as each phase is added to the common
8073 interest community condominium and those facilities or areas
8074 that which may not be built or provided if any phase or phases
8075 are not developed and added as a part of the common interest
8076 community condominium. The developer may reserve the right to
8077 add additional common-element recreational facilities if the
8078 original documents contain declaration contains a description of
8079 each type of facility and its proposed location. The declaration
8080 shall set forth the circumstances under which such facilities
8081 will be added.
8082 (e) The membership vote and ownership in the association
8083 attributable to each unit in each phase and the results if any
8084 phase or phases are not developed and added as a part of the
8085 common interest community condominium.
8086 (f) Whether or not timeshare estates will or may be created
8087 with respect to units in any phase and, if so, the degree,
8088 quantity, nature, and extent of such estates, specifying the
8089 minimum duration of the recurring periods of rights of use,
8090 possession, or occupancy that may be established with respect to
8091 any unit.
8092 (3) The developer shall notify owners of existing units of
8093 the decision not to add one or more additional phases. Notice
8094 shall be by first-class mail addressed to each owner at the
8095 address of his or her unit or at his or her last known address.
8096 (4) If one or more phases are not built, the units that
8097 which are built are entitled to 100 percent ownership of all
8098 common elements within the phases actually developed and added
8099 as a part of the common interest community condominium.
8100 (5) If the documents require declaration requires the
8101 developer to convey any additional lands or facilities to the
8102 common interest community condominium after the completion of
8103 the first phase and he or she fails to do so within the time
8104 specified, or within a reasonable time if none is specified,
8105 then any owner of a unit or the association may enforce such
8106 obligations against the developer or bring an action against the
8107 developer for damages caused by the developer’s failure to
8108 convey to the association such additional lands or facilities.
8109 (6) Notwithstanding other provisions of this chapter, any
8110 amendment by the developer which adds any land to the common
8111 interest community condominium shall be consistent with the
8112 provisions of the documents declaration granting such right and
8113 shall contain or provide for the following matters:
8114 (a) A statement submitting the additional land to common
8115 interest community condominium ownership as an addition to the
8116 common interest community condominium.
8117 (b) The legal description of the land being added to the
8118 common interest community condominium.
8119 (c) An Identification by letter, name, or number, or a
8120 combination thereof, of each unit within the land added to the
8121 common interest community condominium, to ensure that no unit in
8122 the common interest community condominium, including the
8123 additional land, will bear the same designation as any other
8124 unit.
8125 (d) A survey of the additional land and a graphic
8126 description of the improvements in which any units are located
8127 and a plot plan thereof and a certificate of a surveyor, in
8128 conformance with s. 718.104(6) 718.104(4)(e).
8129 (e) The undivided share in the common elements appurtenant
8130 to each unit in the common interest community condominium,
8131 stated as a percentage or fraction which, in the aggregate, must
8132 equal the whole and must be determined in conformance with the
8133 manner of allocation set forth in the original documents
8134 declaration of the common interest community condominium.
8135 (f) The proportion or percentage of, and the manner of
8136 sharing, common expenses and owning common surplus, which for a
8137 residential unit must be the same as the undivided share in the
8138 common elements.
8139 (7) An amendment that which adds phases to a common
8140 interest community condominium does not require the execution of
8141 such amendment or consent thereto by unit owners other than the
8142 developer, unless the amendment permits the creation of
8143 timeshare estates in any unit of the additional phase of the
8144 common interest community condominium and such creation is not
8145 authorized by the original documents declaration.
8146 (8)(7) An amendment to the documents declaration of the
8147 common interest community condominium which adds land to the
8148 common interest community condominium shall be recorded in the
8149 public records of the county where the land is located and shall
8150 be executed and acknowledged in compliance with the same
8151 requirements as for a deed. All persons who have record title to
8152 the interest in the land submitted to common interest community
8153 condominium ownership, or their lawfully authorized agents, must
8154 join in the execution of the amendment. Every such amendment
8155 shall comply with the provisions of s. 718.104(3).
8156 (9)(8) Upon recording the documents declaration of the
8157 common interest community condominium or amendments adding
8158 phases pursuant to this section, the developer shall file the
8159 recording information with the division within 120 calendar days
8160 on a form prescribed by the division.
8161 (10)(9) Paragraphs (2)(b)-(f) and subsection (9) (8) do not
8162 apply to nonresidential common interest communities
8163 condominiums.
8164 Section 91. Section 718.404, Florida Statutes, is amended
8165 to read:
8166 718.404 Mixed-use common interest communities
8167 condominiums.—When a common interest community condominium
8168 consists of both residential and commercial units, the following
8169 provisions shall apply:
8170 (1) The common interest community condominium documents
8171 shall not provide that the owner of any commercial unit shall
8172 have the authority to veto amendments to the documents
8173 declaration, articles of incorporation, bylaws, or rules or
8174 regulations of the association. This subsection shall apply
8175 retroactively as a remedial measure.
8176 (2) Subject to s. 718.301, where the number of residential
8177 units in the common interest community condominium equals or
8178 exceeds 50 percent of the total units operated by the
8179 association, owners of the residential units shall be entitled
8180 to vote for a majority of the seats on the board of
8181 administration. This subsection shall apply retroactively as a
8182 remedial measure.
8183 (3) In the documents declaration of the common interest
8184 community condominium for mixed-use common interest communities
8185 condominiums created after January 1, 1996, the ownership share
8186 of the common elements assigned to each unit shall be based
8187 either on the total square footage of each unit in uniform
8188 relationship to the total square footage of each other unit in
8189 the common interest community condominium or on an equal
8190 fractional basis.
8191 (4) The provisions of this section shall not apply to
8192 timeshare common interest communities condominiums.
8193 Section 92. Section 718.405, Florida Statutes, is amended
8194 to read:
8195 718.405 Multi-common interest communities
8196 Multicondominiums; multi-common interest community
8197 multicondominium associations.—
8198 (1) An association may operate more than one common
8199 interest community condominium. For multi-common interest
8200 communities multicondominiums created on or after July 1, 2000,
8201 the documents declaration for each common interest community
8202 condominium to be operated by that association must provide for
8203 participation in a multi-common interest community
8204 multicondominium, in conformity with this section, and disclose
8205 or describe:
8206 (a) The manner or formula by which the assets, liabilities,
8207 common surplus, and common expenses of the association will be
8208 apportioned among the units within the common interest
8209 communities condominiums operated by the association, in
8210 accordance with s. 718.104(6) 718.104(4)(g) or (h), as
8211 applicable.
8212 (b) Whether unit owners in any other common interest
8213 community condominium, or any other persons, will or may have
8214 the right to use recreational areas or any other facilities or
8215 amenities that are common elements of the common interest
8216 community condominium, and, if so, the specific formula by which
8217 the other users will share the common expenses related to those
8218 facilities or amenities.
8219 (c) Recreational and other commonly used facilities or
8220 amenities that which the developer has committed to provide that
8221 will be owned, leased by, or dedicated by a recorded plat to the
8222 association but that which are not included within any common
8223 interest community condominium operated by the association. The
8224 developer may reserve the right to add additional facilities or
8225 amenities if the declaration and prospectus for each common
8226 interest community condominium to be operated by the association
8227 contains the following statement in conspicuous type and in
8228 substantially the following form: RECREATIONAL FACILITIES MAY BE
8229 EXPANDED OR ADDED WITHOUT CONSENT OF UNIT OWNERS OR THE
8230 ASSOCIATION.
8231 (d) The voting rights of the unit owners in the election of
8232 directors and in other multi-common interest community
8233 multicondominium association affairs when a vote of the owners
8234 is taken, including, but not limited to, a statement as to
8235 whether each unit owner will have a right to personally cast his
8236 or her own vote in all matters voted upon.
8237 (2) If any documents require declaration requires a
8238 developer to convey additional lands or facilities to a multi
8239 common interest community multicondominium association and the
8240 developer fails to do so within the time specified, or within a
8241 reasonable time if none is specified in the documents
8242 declaration, any unit owner or the association may enforce that
8243 obligation against the developer or bring an action against the
8244 developer for specific performance or for damages that result
8245 from the developer’s failure or refusal to convey the additional
8246 lands or facilities.
8247 (3) The documents declaration for each common interest
8248 community condominium to be operated by a multi-common interest
8249 community multicondominium association may not, at the time of
8250 the initial recording of the documents declaration, contain any
8251 provision with respect to allocation of the association’s
8252 assets, liabilities, common surplus, or common expenses which is
8253 inconsistent with this chapter or the provisions of the
8254 documents a declaration for any other common interest community
8255 condominium then being operated by the multi-common interest
8256 community multicondominium association.
8257 (4) This section does not prevent or restrict the formation
8258 of a multi-common interest community multicondominium by the
8259 merger or consolidation of two or more common interest community
8260 condominium associations. Mergers or consolidations of
8261 associations shall be accomplished in accordance with this
8262 chapter, the documents declarations of the common interest
8263 communities condominiums being merged or consolidated, and
8264 chapter 617. Section 718.110(4) does not apply to amendments to
8265 documents declarations necessary to effect a merger or
8266 consolidation. This section is intended to clarify existing law
8267 and applies to associations existing on the effective date of
8268 this act.
8269 Section 93. Section 718.406, Florida Statutes, is amended
8270 to read:
8271 718.406 Common interest communities condominiums created
8272 within common interest community condominium parcels.—
8273 (1) Unless otherwise expressed in the documents declaration
8274 of the common interest community condominium, if a common
8275 interest community condominium is created within a common
8276 interest community condominium parcel, the term:
8277 (a) “Primary common interest community condominium” means
8278 any common interest community condominium that is not a
8279 secondary common interest community condominium and contains one
8280 or more subdivided parcels.
8281 (b) “Primary common interest community condominium
8282 association” means any entity that operates a primary common
8283 interest community condominium.
8284 (c) “Primary common interest community condominium
8285 declaration” means the instrument or instruments by which a
8286 primary common interest community condominium is created, as
8287 they are from time to time amended.
8288 (d) “Secondary common interest community condominium” means
8289 one or more common interest community condominium parcels that
8290 have been submitted to common interest community condominium
8291 ownership pursuant to a secondary common interest community
8292 condominium declaration.
8293 (e) “Secondary common interest community condominium
8294 association” means any entity responsible for the operation of a
8295 secondary common interest community condominium.
8296 (f) “Secondary common interest community condominium
8297 declaration” means the instrument or instruments by which a
8298 secondary common interest community condominium is created, as
8299 they are from time to time amended.
8300 (g) “Secondary unit” means a unit that is part of a
8301 secondary common interest community condominium.
8302 (h) “Subdivided parcel” means a common interest community
8303 condominium parcel in a primary common interest community which
8304 condominium that has been submitted to common interest community
8305 condominium ownership pursuant to a secondary common interest
8306 community condominium declaration.
8307 (2) Unless otherwise provided in the primary common
8308 interest community condominium declaration, if a common interest
8309 community condominium parcel is a subdivided parcel, the
8310 secondary common interest community condominium association
8311 responsible for operating the secondary common interest
8312 community condominium upon the subdivided parcel shall act on
8313 behalf of all of the unit owners of secondary units in the
8314 secondary common interest community condominium and shall
8315 exercise all rights of the secondary unit owners in the primary
8316 common interest community condominium association, other than
8317 the right of possession of the secondary unit. The secondary
8318 common interest community condominium association shall
8319 designate a representative who shall cast the vote of the
8320 subdivided parcel in the primary common interest community
8321 condominium association and, if no person is designated by the
8322 secondary common interest community condominium association to
8323 cast such vote, the vote shall be cast by the president of the
8324 secondary common interest community condominium association or
8325 the designee of the president.
8326 (3) Unless otherwise provided in the primary common
8327 interest community condominium declaration as originally
8328 recorded, no secondary common interest community condominium may
8329 be created upon any common interest community condominium parcel
8330 in the primary common interest community condominium, and no
8331 amendment to the primary common interest community condominium
8332 declaration may permit secondary common interest communities
8333 condominiums to be created upon parcels in the primary common
8334 interest community condominium, unless the record owners of a
8335 majority of the common interest community condominium parcels
8336 join in the execution of the amendment.
8337 (4) If the primary common interest community condominium
8338 declaration permits the creation of a secondary common interest
8339 community condominium and a common interest community
8340 condominium parcel in the primary common interest community
8341 condominium is being submitted for common interest community
8342 condominium ownership to create a secondary common interest
8343 community condominium upon the primary common interest community
8344 condominium parcel, the approval of the board of administration
8345 of the primary common interest community condominium association
8346 is required in order to create the secondary common interest
8347 community condominium on the primary common interest community
8348 condominium parcel. Unless otherwise provided in the primary
8349 common interest community condominium declaration, the owners of
8350 common interest community condominium parcels in the primary
8351 common interest community which condominium that will not be
8352 part of the proposed secondary common interest community
8353 condominium and the holders of liens upon such primary common
8354 interest community condominium parcels shall not have approval
8355 rights regarding the creation of the secondary common interest
8356 community condominium or the contents of the secondary common
8357 interest community condominium declaration being submitted. Only
8358 the board of administration of the primary common interest
8359 community condominium association, the owner of the subdivided
8360 parcel, and the holders of liens upon the subdivided parcel
8361 shall have approval rights regarding the creation of the
8362 secondary common interest community condominium and the contents
8363 of the secondary common interest community condominium
8364 declaration. In order for the recording of the secondary common
8365 interest community condominium declaration to be effective to
8366 create the secondary common interest community condominium, the
8367 board of administration of the primary common interest community
8368 condominium association, the owner of the subdivided parcel, and
8369 all holders of liens on the subdivided parcel must execute the
8370 secondary common interest community condominium declaration for
8371 the purpose of evidencing their approval.
8372 (5) An owner of a secondary unit is subject to both the
8373 primary common interest community condominium declaration and
8374 the secondary common interest community condominium declaration.
8375 (6) The primary common interest community condominium
8376 association may provide insurance required by s. 718.111(11) for
8377 common elements and other improvements within the secondary
8378 common interest community condominium if the primary common
8379 interest community condominium declaration permits the primary
8380 common interest community condominium association to provide
8381 such insurance for the benefit of the common interest community
8382 condominium property included in the subdivided parcel, in lieu
8383 of such insurance being provided by the secondary common
8384 interest community condominium association.
8385 (7) Unless otherwise provided in the primary common
8386 interest community condominium declaration, the board of
8387 administration of the primary common interest community
8388 condominium association may adopt hurricane shutter or hurricane
8389 protection specifications for each building within which
8390 subdivided parcels are located and govern any subdivided parcels
8391 in the primary common interest community condominium.
8392 (8) Any unit owner of, or holder of a first mortgage on, a
8393 secondary unit may register such unit owner’s or mortgagee’s
8394 interest in the secondary unit with the primary common interest
8395 community condominium association by delivering written notice
8396 to the primary common interest community condominium
8397 association. Once registered, the primary common interest
8398 community condominium association must provide written notice to
8399 such secondary unit owner and his, her, or its first mortgagee
8400 at least 30 days before instituting any foreclosure action
8401 against the subdivided parcel in which the secondary unit owner
8402 and his, her, or its first mortgagee hold an interest for
8403 failure of the subdivided parcel owner to pay any assessments or
8404 other amounts due to the primary common interest community
8405 condominium association. A foreclosure action against a
8406 subdivided parcel is not effective without an affidavit
8407 indicating that written notice of the foreclosure was timely
8408 sent to the names and addresses of secondary unit owners and
8409 first mortgagees registered with the primary common interest
8410 community condominium association pursuant to this subsection.
8411 The registered secondary unit owner or mortgagee has a right to
8412 pay the proportionate amount of the delinquent assessment
8413 attributable to the secondary unit in which the registered unit
8414 owner or mortgagee holds an interest. Upon such payment, the
8415 primary common interest community condominium association is
8416 obligated to promptly modify or partially release the record of
8417 lien on the primary common interest community condominium
8418 association so that the lien no longer encumbers such secondary
8419 unit. Alternatively, a registered secondary unit owner or
8420 mortgagee may pay the amount of all delinquent assessments
8421 attributed to the subdivided parcel and seek reimbursement for
8422 all such amounts paid and all costs incurred from the secondary
8423 common interest community condominium association, including,
8424 without limitation, the costs of collection other than the share
8425 allocable to the secondary unit on behalf of which such payment
8426 was made.
8427 (9) In the event of a conflict between the primary common
8428 interest community condominium declaration and the secondary
8429 common interest community condominium declaration, the primary
8430 common interest community condominium declaration controls.
8431 (10) All common expenses due to the primary common interest
8432 community condominium association with respect to a subdivided
8433 parcel are a common expense of the secondary common interest
8434 community condominium association and shall be collected by the
8435 secondary common interest community condominium association from
8436 its members and paid to the primary common interest community
8437 condominium association.
8438 Section 94. Section 718.501, Florida Statutes, is amended
8439 to read:
8440 718.501 Authority, responsibility, and duties of Division
8441 of Common Interest Communities Florida Condominiums, Timeshares,
8442 and Mobile Homes.—
8443 (1) The division may enforce and ensure compliance with the
8444 provisions of this chapter and rules relating to the
8445 development, construction, sale, lease, ownership, operation,
8446 and management of residential common interest community
8447 condominium units. In performing its duties, the division has
8448 complete jurisdiction to investigate complaints and enforce
8449 compliance with respect to associations that are still under
8450 developer control or the control of a bulk assignee or bulk
8451 buyer pursuant to part VII of this chapter and complaints
8452 against developers, bulk assignees, or bulk buyers involving
8453 improper turnover or failure to turnover, pursuant to s.
8454 718.301. However, after turnover has occurred, the division has
8455 jurisdiction to investigate complaints related only to financial
8456 issues, elections, and unit owner access to association records
8457 pursuant to s. 718.111(12).
8458 (a)1. The division may make necessary public or private
8459 investigations within or outside this state to determine whether
8460 any person has violated this chapter or any rule or order
8461 hereunder, to aid in the enforcement of this chapter, or to aid
8462 in the adoption of rules or forms.
8463 2. The division may submit any official written report,
8464 worksheet, or other related paper, or a duly certified copy
8465 thereof, compiled, prepared, drafted, or otherwise made by and
8466 duly authenticated by a financial examiner or analyst to be
8467 admitted as competent evidence in any hearing in which the
8468 financial examiner or analyst is available for cross-examination
8469 and attests under oath that such documents were prepared as a
8470 result of an examination or inspection conducted pursuant to
8471 this chapter.
8472 (b) The division may require or permit any person to file a
8473 statement in writing, under oath or otherwise, as the division
8474 determines, as to the facts and circumstances concerning a
8475 matter to be investigated.
8476 (c) For the purpose of any investigation under this
8477 chapter, the division director or any officer or employee
8478 designated by the division director may administer oaths or
8479 affirmations, subpoena witnesses and compel their attendance,
8480 take evidence, and require the production of any matter which is
8481 relevant to the investigation, including the existence,
8482 description, nature, custody, condition, and location of any
8483 books, documents, or other tangible things and the identity and
8484 location of persons having knowledge of relevant facts or any
8485 other matter reasonably calculated to lead to the discovery of
8486 material evidence. Upon the failure by a person to obey a
8487 subpoena or to answer questions propounded by the investigating
8488 officer and upon reasonable notice to all affected persons, the
8489 division may apply to the circuit court for an order compelling
8490 compliance.
8491 (d) Notwithstanding any remedies available to unit owners
8492 and associations, if the division has reasonable cause to
8493 believe that a violation of any provision of this chapter or
8494 related rule has occurred, the division may institute
8495 enforcement proceedings in its own name against any developer,
8496 bulk assignee, bulk buyer, association, officer, or member of
8497 the board of administration, or its assignees or agents, as
8498 follows:
8499 1. The division may permit a person whose conduct or
8500 actions may be under investigation to waive formal proceedings
8501 and enter into a consent proceeding whereby orders, rules, or
8502 letters of censure or warning, whether formal or informal, may
8503 be entered against the person.
8504 2. The division may issue an order requiring the developer,
8505 bulk assignee, bulk buyer, association, developer-designated
8506 officer, or developer-designated member of the board of
8507 administration, developer-designated assignees or agents, bulk
8508 assignee-designated assignees or agents, bulk buyer-designated
8509 assignees or agents, community association manager, or community
8510 association management firm to cease and desist from the
8511 unlawful practice and take such affirmative action as in the
8512 judgment of the division carry out the purposes of this chapter.
8513 If the division finds that a developer, bulk assignee, bulk
8514 buyer, association, officer, or member of the board of
8515 administration, or its assignees or agents, is violating or is
8516 about to violate any provision of this chapter, any rule adopted
8517 or order issued by the division, or any written agreement
8518 entered into with the division, and presents an immediate danger
8519 to the public requiring an immediate final order, it may issue
8520 an emergency cease and desist order reciting with particularity
8521 the facts underlying such findings. The emergency cease and
8522 desist order is effective for 90 days. If the division begins
8523 nonemergency cease and desist proceedings, the emergency cease
8524 and desist order remains effective until the conclusion of the
8525 proceedings under ss. 120.569 and 120.57.
8526 3. If a developer, bulk assignee, or bulk buyer, fails to
8527 pay any restitution determined by the division to be owed, plus
8528 any accrued interest at the highest rate permitted by law,
8529 within 30 days after expiration of any appellate time period of
8530 a final order requiring payment of restitution or the conclusion
8531 of any appeal thereof, whichever is later, the division must
8532 bring an action in circuit or county court on behalf of any
8533 association, class of unit owners, lessees, or purchasers for
8534 restitution, declaratory relief, injunctive relief, or any other
8535 available remedy. The division may also temporarily revoke its
8536 acceptance of the filing for the developer to which the
8537 restitution relates until payment of restitution is made.
8538 4. The division may petition the court for appointment of a
8539 receiver or conservator. If appointed, the receiver or
8540 conservator may take action to implement the court order to
8541 ensure the performance of the order and to remedy any breach
8542 thereof. In addition to all other means provided by law for the
8543 enforcement of an injunction or temporary restraining order, the
8544 circuit court may impound or sequester the property of a party
8545 defendant, including books, papers, documents, and related
8546 records, and allow the examination and use of the property by
8547 the division and a court-appointed receiver or conservator.
8548 5. The division may apply to the circuit court for an order
8549 of restitution whereby the defendant in an action brought
8550 pursuant to subparagraph 4. is ordered to make restitution of
8551 those sums shown by the division to have been obtained by the
8552 defendant in violation of this chapter. At the option of the
8553 court, such restitution is payable to the conservator or
8554 receiver appointed pursuant to subparagraph 4. or directly to
8555 the persons whose funds or assets were obtained in violation of
8556 this chapter.
8557 6. The division may impose a civil penalty against a
8558 developer, bulk assignee, or bulk buyer, or association, or its
8559 assignee or agent, for any violation of this chapter or related
8560 rule. The division may impose a civil penalty individually
8561 against an officer or board member who willfully and knowingly
8562 violates a provision of this chapter, adopted rule, or a final
8563 order of the division; may order the removal of such individual
8564 as an officer or from the board of administration or as an
8565 officer of the association; and may prohibit such individual
8566 from serving as an officer or on the board of a community
8567 association for a period of time. The term “willfully and
8568 knowingly” means that the division informed the officer or board
8569 member that his or her action or intended action violates this
8570 chapter, a rule adopted under this chapter, or a final order of
8571 the division and that the officer or board member refused to
8572 comply with the requirements of this chapter, a rule adopted
8573 under this chapter, or a final order of the division. The
8574 division, before initiating formal agency action under chapter
8575 120, must afford the officer or board member an opportunity to
8576 voluntarily comply, and an officer or board member who complies
8577 within 10 days is not subject to a civil penalty. A penalty may
8578 be imposed on the basis of each day of continuing violation, but
8579 the penalty for any offense may not exceed $5,000. By January 1,
8580 1998, the division shall adopt, by rule, penalty guidelines
8581 applicable to possible violations or to categories of violations
8582 of this chapter or rules adopted by the division. The guidelines
8583 must specify a meaningful range of civil penalties for each such
8584 violation of the statute and rules and must be based upon the
8585 harm caused by the violation, the repetition of the violation,
8586 and upon such other factors deemed relevant by the division. For
8587 example, the division may consider whether the violations were
8588 committed by a developer, bulk assignee, or bulk buyer, or
8589 owner-controlled association, the size of the association, and
8590 other factors. The guidelines must designate the possible
8591 mitigating or aggravating circumstances that justify a departure
8592 from the range of penalties provided by the rules. It is the
8593 legislative intent that minor violations be distinguished from
8594 those which endanger the health, safety, or welfare of the
8595 common interest community condominium residents or other persons
8596 and that such guidelines provide reasonable and meaningful
8597 notice to the public of likely penalties that may be imposed for
8598 proscribed conduct. This subsection does not limit the ability
8599 of the division to informally dispose of administrative actions
8600 or complaints by stipulation, agreed settlement, or consent
8601 order. All amounts collected shall be deposited with the Chief
8602 Financial Officer to the credit of the Division of Common
8603 Interest Communities Florida Condominiums, Timeshares, and
8604 Mobile Homes Trust Fund. If a developer, bulk assignee, or bulk
8605 buyer fails to pay the civil penalty and the amount deemed to be
8606 owed to the association, the division shall issue an order
8607 directing that such developer, bulk assignee, or bulk buyer
8608 cease and desist from further operation until such time as the
8609 civil penalty is paid or may pursue enforcement of the penalty
8610 in a court of competent jurisdiction. If an association fails to
8611 pay the civil penalty, the division shall pursue enforcement in
8612 a court of competent jurisdiction, and the order imposing the
8613 civil penalty or the cease and desist order is not effective
8614 until 20 days after the date of such order. Any action commenced
8615 by the division shall be brought in the county in which the
8616 division has its executive offices or in the county where the
8617 violation occurred.
8618 7. If a unit owner presents the division with proof that
8619 the unit owner has requested access to official records in
8620 writing by certified mail, and that after 5 10 days the unit
8621 owner again made the same request for access to official records
8622 in writing by certified mail, and that more than 5 10 days has
8623 elapsed since the second request and the association has still
8624 failed or refused to provide access to official records as
8625 required by this chapter, the division shall issue a subpoena
8626 requiring production of the requested records where the records
8627 are kept pursuant to s. 718.112.
8628 8. In addition to subparagraph 6., the division may seek
8629 the imposition of a civil penalty through the circuit court for
8630 any violation for which the division may issue a notice to show
8631 cause under paragraph (r). The civil penalty shall be at least
8632 $500 but no more than $5,000 for each violation. The court may
8633 also award to the prevailing party court costs and reasonable
8634 attorney attorney’s fees to the prevailing party and, if the
8635 division prevails, may also award reasonable costs of
8636 investigation.
8637 (e) The division may prepare and disseminate a prospectus
8638 and other information to assist prospective owners, purchasers,
8639 lessees, and developers of residential common interest
8640 communities condominiums in assessing the rights, privileges,
8641 and duties pertaining thereto.
8642 (f) The division may adopt rules to administer and enforce
8643 the provisions of this chapter.
8644 (g) The division shall establish procedures for providing
8645 notice to an association and the developer, bulk assignee, or
8646 bulk buyer during the period in which the developer, bulk
8647 assignee, or bulk buyer controls the association if the division
8648 is considering the issuance of a declaratory statement with
8649 respect to the documents declaration of the common interest
8650 community condominium or any related document governing such
8651 common interest condominium community.
8652 (h) The division shall furnish each association that pays
8653 the fees required by paragraph (2)(a) a copy of this chapter, as
8654 amended, and the rules adopted thereto on an annual basis.
8655 (i) The division shall annually provide each association
8656 with a summary of declaratory statements and formal legal
8657 opinions relating to the operations of common interest
8658 communities condominiums which were rendered by the division
8659 during the previous year.
8660 (j) The division shall provide training and educational
8661 programs for common interest community condominium association
8662 board members and unit owners. The training may, in the
8663 division’s discretion, include web-based electronic media, and
8664 live training and seminars in various locations throughout the
8665 state. The division may review and approve education and
8666 training programs for board members and unit owners offered by
8667 providers and shall maintain a current list of approved programs
8668 and providers and make such list available to board members and
8669 unit owners in a reasonable and cost-effective manner.
8670 (k) The division shall maintain a toll-free telephone
8671 number accessible to common interest community condominium unit
8672 owners.
8673 (l) The division shall develop a program to certify both
8674 volunteer and paid mediators to provide mediation of common
8675 interest community condominium disputes. The division shall
8676 provide, upon request, a list of such mediators to any
8677 association, unit owner, or other participant in arbitration
8678 proceedings under s. 718.1255 requesting a copy of the list. The
8679 division shall include on the list of volunteer mediators only
8680 the names of persons who have received at least 20 hours of
8681 training in mediation techniques or who have mediated at least
8682 20 disputes. In order to become initially certified by the
8683 division, paid mediators must be certified by the Supreme Court
8684 to mediate court cases in county or circuit courts. However, the
8685 division may adopt, by rule, additional factors for the
8686 certification of paid mediators, which must be related to
8687 experience, education, or background. Any person initially
8688 certified as a paid mediator by the division must, in order to
8689 continue to be certified, comply with the factors or
8690 requirements adopted by rule.
8691 (m) If a complaint is made, the division must conduct its
8692 inquiry with due regard for the interests of the affected
8693 parties. Within 30 days after receipt of a complaint, the
8694 division shall acknowledge the complaint in writing and notify
8695 the complainant whether the complaint is within the jurisdiction
8696 of the division and whether additional information is needed by
8697 the division from the complainant. The division shall conduct
8698 its investigation and, within 90 days after receipt of the
8699 original complaint or of timely requested additional
8700 information, take action upon the complaint. However, the
8701 failure to complete the investigation within 90 days does not
8702 prevent the division from continuing the investigation,
8703 accepting or considering evidence obtained or received after 90
8704 days, or taking administrative action if reasonable cause exists
8705 to believe that a violation of this chapter or a rule has
8706 occurred. If an investigation is not completed within the time
8707 limits established in this paragraph, the division shall, on a
8708 monthly basis, notify the complainant in writing of the status
8709 of the investigation. When reporting its action to the
8710 complainant, the division shall inform the complainant of any
8711 right to a hearing pursuant to ss. 120.569 and 120.57.
8712 (n) Common interest community Condominium association
8713 directors, officers, and employees; common interest community
8714 condominium developers; bulk assignees, bulk buyers, and
8715 community association managers; and community association
8716 management firms have an ongoing duty to reasonably cooperate
8717 with the division in any investigation pursuant to this section.
8718 The division shall refer to local law enforcement authorities
8719 any person whom the division believes has altered, destroyed,
8720 concealed, or removed any record, document, or thing required to
8721 be kept or maintained by this chapter with the purpose to impair
8722 its verity or availability in the department’s investigation.
8723 (o) The division may:
8724 1. Contract with agencies in this state or other
8725 jurisdictions to perform investigative functions; or
8726 2. Accept grants-in-aid from any source.
8727 (p) The division shall cooperate with similar agencies in
8728 other jurisdictions to establish uniform filing procedures and
8729 forms, public offering statements, advertising standards, and
8730 rules and common administrative practices.
8731 (q) The division shall consider notice to a developer, bulk
8732 assignee, or bulk buyer to be complete when it is delivered to
8733 the address of the developer, bulk assignee, or bulk buyer
8734 currently on file with the division.
8735 (r) In addition to its enforcement authority, the division
8736 may issue a notice to show cause, which must provide for a
8737 hearing, upon written request, in accordance with chapter 120.
8738 (s) The division shall submit to the Governor, the
8739 President of the Senate, the Speaker of the House of
8740 Representatives, and the chairs of the legislative
8741 appropriations committees an annual report that includes, but
8742 need not be limited to, the number of training programs provided
8743 for common interest community condominium association board
8744 members and unit owners, the number of complaints received by
8745 type, the number and percent of complaints acknowledged in
8746 writing within 30 days and the number and percent of
8747 investigations acted upon within 90 days in accordance with
8748 paragraph (m), and the number of investigations exceeding the
8749 90-day requirement. The annual report must also include an
8750 evaluation of the division’s core business processes and make
8751 recommendations for improvements, including statutory changes.
8752 The report shall be submitted by September 30 following the end
8753 of the fiscal year.
8754 (2)(a) Each common interest community condominium
8755 association that which operates more than two units shall pay to
8756 the division an annual fee in the amount of $2 $4 for each
8757 residential unit in common interest communities condominiums
8758 operated by the association. If the fee is not paid by March 1,
8759 the association shall be assessed a penalty of 10 percent of the
8760 amount due, and the association will not have standing to
8761 maintain or defend any action in the courts of this state until
8762 the amount due, plus any penalty, is paid.
8763 (b) All fees shall be deposited in the Division of Common
8764 Interest Communities Florida Condominiums, Timeshares, and
8765 Mobile Homes Trust Fund as provided by law.
8766 Section 95. Section 718.5011, Florida Statutes, is amended
8767 to read:
8768 718.5011 Ombudsman; appointment; administration.—
8769 (1) There is created an Office of the Common Interest
8770 Community Condominium Ombudsman, to be located for
8771 administrative purposes within the Division of Common Interest
8772 Communities Florida Condominiums, Timeshares, and Mobile Homes.
8773 The functions of the office shall be funded by the Division of
8774 Common Interest Communities Florida Condominiums, Timeshares,
8775 and Mobile Homes Trust Fund. The ombudsman shall be a bureau
8776 chief of the division, and the office shall be set within the
8777 division in the same manner as any other bureau is staffed and
8778 funded.
8779 (2) The Governor shall appoint the ombudsman. The ombudsman
8780 must be an attorney admitted to practice before the Florida
8781 Supreme Court and shall serve at the pleasure of the Governor. A
8782 vacancy in the office shall be filled in the same manner as the
8783 original appointment. An officer or full-time employee of the
8784 ombudsman’s office may not actively engage in any other business
8785 or profession that directly or indirectly relates to or
8786 conflicts with his or her work in the ombudsman’s office; serve
8787 as the representative of any political party, executive
8788 committee, or other governing body of a political party; serve
8789 as an executive, officer, or employee of a political party;
8790 receive remuneration for activities on behalf of any candidate
8791 for public office; or engage in soliciting votes or other
8792 activities on behalf of a candidate for public office. The
8793 ombudsman or any employee of his or her office may not become a
8794 candidate for election to public office unless he or she first
8795 resigns from his or her office or employment.
8796 Section 96. Section 718.5012, Florida Statutes, is amended
8797 to read:
8798 718.5012 Ombudsman; powers and duties.—The ombudsman shall
8799 have the powers that are necessary to carry out the duties of
8800 his or her office, including the following specific powers:
8801 (1) To have access to and use of all files and records of
8802 the division.
8803 (2) To employ professional and clerical staff as necessary
8804 for the efficient operation of the office.
8805 (3) To prepare and issue reports and recommendations to the
8806 Governor, the department, the division, the Advisory Council on
8807 Common Interest Communities Condominiums, the President of the
8808 Senate, and the Speaker of the House of Representatives on any
8809 matter or subject within the jurisdiction of the division. The
8810 ombudsman shall make recommendations he or she deems appropriate
8811 for legislation relative to division procedures, rules,
8812 jurisdiction, personnel, and functions.
8813 (4) To act as liaison between the division, unit owners,
8814 boards of directors, board members, community association
8815 managers, and other affected parties. The ombudsman shall
8816 develop policies and procedures to assist unit owners, boards of
8817 directors, board members, community association managers, and
8818 other affected parties to understand their rights and
8819 responsibilities as set forth in this chapter and the common
8820 interest community condominium documents governing their
8821 respective association. The ombudsman shall coordinate and
8822 assist in the preparation and adoption of educational and
8823 reference material, and shall endeavor to coordinate with
8824 private or volunteer providers of these services, so that the
8825 availability of these resources is made known to the largest
8826 possible audience.
8827 (5) To monitor and review procedures and disputes
8828 concerning common interest community condominium elections or
8829 meetings, including, but not limited to, recommending that the
8830 division pursue enforcement action in any manner where there is
8831 reasonable cause to believe that election misconduct has
8832 occurred.
8833 (6) To make recommendations to the division for changes in
8834 rules and procedures for the filing, investigation, and
8835 resolution of complaints filed by unit owners, associations, and
8836 managers.
8837 (7) To provide resources to assist members of boards of
8838 directors and officers of associations to carry out their powers
8839 and duties consistent with this chapter, division rules, and the
8840 common interest community condominium documents governing the
8841 association.
8842 (8) To encourage and facilitate voluntary meetings with and
8843 between unit owners, boards of directors, board members,
8844 community association managers, and other affected parties when
8845 the meetings may assist in resolving a dispute within a
8846 community association before a person submits a dispute for a
8847 formal or administrative remedy. It is the intent of the
8848 Legislature that the ombudsman act as a neutral resource for
8849 both the rights and responsibilities of unit owners,
8850 associations, and board members.
8851 (9) To assist with the resolution of disputes between unit
8852 owners and the association or between unit owners when the
8853 dispute is not within the jurisdiction of the division to
8854 resolve.
8855 (10) Fifteen percent of the total voting interests in a
8856 common interest community condominium association, or six unit
8857 owners, whichever is greater, may petition the ombudsman to
8858 appoint an election monitor to attend the annual meeting of the
8859 unit owners and conduct the election of directors. The ombudsman
8860 shall appoint a division employee, a person or persons
8861 specializing in common interest community condominium election
8862 monitoring, or an attorney licensed to practice in this state as
8863 the election monitor. All costs associated with the election
8864 monitoring process shall be paid by the association. The
8865 division shall adopt a rule establishing procedures for the
8866 appointment of election monitors and the scope and extent of the
8867 monitor’s role in the election process.
8868 Section 97. Section 718.50156, Florida Statutes, is created
8869 to read:
8870 718.50156 Community Association Living Study Council;
8871 membership functions.—
8872 (1) The Community Association Living Study Council is
8873 created effective October 1, 2016. The council shall consist of
8874 seven appointed members. Two members shall be appointed by the
8875 President of the Senate, two members shall be appointed by the
8876 Speaker of the House of Representatives, and three members, one
8877 of whom may represent timeshare common interest communities,
8878 shall be appointed by the Governor. The director of the division
8879 shall appoint an ex officio nonvoting member. The Legislature
8880 intends that the council members represent a cross-section of
8881 persons interested in community association issues. The council
8882 shall be located within the division for administrative
8883 purposes. Members of the council shall serve without
8884 compensation but may receive per diem and travel expenses
8885 pursuant to s. 112.061 while on official business.
8886 (2) The council shall perform the following functions:
8887 (a) Receive, from the public, Legislature, Governor, and
8888 others, input regarding issues of concern with respect to
8889 community association administration, including living in common
8890 interest communities. The council shall make recommendations for
8891 changes in general law related to community associations. The
8892 issues that the council shall consider include, but are not
8893 limited to, the rights and responsibilities of the unit owners
8894 in relation to the rights and responsibilities of the
8895 association.
8896 (b) Review, evaluate, and advise the division concerning
8897 revisions to and adoption of rules affecting common interest
8898 communities.
8899 (c) Recommend improvements, if needed, in education
8900 programs offered by the division.
8901 (d) Review, evaluate, and advise the Legislature concerning
8902 revisions and improvements to general laws relating to common
8903 interest communities.
8904 (e) Freely consult with the Regulatory Council of Community
8905 Association Managers of the Department of Business and
8906 Professional Regulation to coordinate efforts for regulatory or
8907 legislative improvements.
8908 (3) The council may elect a chair and vice chair and other
8909 officers it deems advisable. The council shall meet at the call
8910 of its chair, at the request of a majority of its membership, at
8911 the request of the division, or at such times as it may
8912 prescribe. A majority of the members of the council shall
8913 constitute a quorum. Council action may be taken by vote of a
8914 majority of the voting members who are present at a meeting
8915 where there is a quorum.
8916 Section 98. Section 718.502, Florida Statutes, is amended
8917 to read:
8918 718.502 Filing prior to sale or lease.—
8919 (1)(a) A developer of a residential common interest
8920 community condominium or mixed-use common interest community
8921 condominium shall file with the division one copy of each of the
8922 documents and items required to be furnished to a buyer or
8923 lessee by ss. 718.503 and 718.504, if applicable. Until the
8924 developer has so filed, a contract for sale of a unit or lease
8925 of a unit for more than 5 years shall be voidable by the
8926 purchaser or lessee prior to the closing of his or her purchase
8927 or lease of a unit.
8928 (b) A developer may not close on any contract for sale or
8929 contract for a lease period of more than 5 years until the
8930 developer prepares and files with the division documents
8931 complying with the requirements of this chapter and the rules
8932 adopted by the division and until the division notifies the
8933 developer that the filing is proper and the developer prepares
8934 and delivers all documents required by s. 718.503(1)(b) to the
8935 prospective buyer.
8936 (c) The division by rule may develop filing, review, and
8937 examination requirements and relevant timetables to ensure
8938 compliance with the notice and disclosure provisions of this
8939 section.
8940 (2)(a) Before Prior to filing as required by subsection
8941 (1), and before prior to acquiring an ownership, leasehold, or
8942 contractual interest in the land upon which the common interest
8943 community condominium is to be developed, a developer shall not
8944 offer a contract for purchase of a unit or lease of a unit for
8945 more than 5 years. However, the developer may accept deposits
8946 for reservations upon the approval of a fully executed escrow
8947 agreement and reservation agreement form properly filed with the
8948 Division of Common Interest Communities Florida Condominiums,
8949 Timeshares, and Mobile Homes. Each filing of a proposed
8950 reservation program shall be accompanied by a filing fee of
8951 $250. Reservations shall not be taken on a proposed common
8952 interest community condominium unless the developer has an
8953 ownership, leasehold, or contractual interest in the land upon
8954 which the common interest community condominium is to be
8955 developed. The division shall notify the developer within 20
8956 days of receipt of the reservation filing of any deficiencies
8957 contained therein. Such notification shall not preclude the
8958 determination of reservation filing deficiencies at a later
8959 date, nor shall it relieve the developer of any responsibility
8960 under the law. The escrow agreement and the reservation
8961 agreement form shall include a statement of the right of the
8962 prospective purchaser to an immediate unqualified refund of the
8963 reservation deposit moneys upon written request to the escrow
8964 agent by the prospective purchaser or the developer.
8965 (b) The executed escrow agreement signed by the developer
8966 and the escrow agent shall contain the following information:
8967 1. A statement that the escrow agent will grant a
8968 prospective purchaser an immediate, unqualified refund of the
8969 reservation deposit moneys upon written request either directly
8970 to the escrow agent or to the developer.
8971 2. A statement that the escrow agent is responsible for not
8972 releasing moneys directly to the developer except as a down
8973 payment on the purchase price at the time a contract is signed
8974 by the purchaser if provided in the contract.
8975 (c) The reservation agreement form shall include the
8976 following:
8977 1. A statement of the obligation of the developer to file
8978 common interest community condominium documents with the
8979 division prior to entering into a binding purchase agreement or
8980 binding agreement for a lease of more than 5 years.
8981 2. A statement of the right of the prospective purchaser to
8982 receive all common interest community condominium documents as
8983 required by this chapter.
8984 3. The name and address of the escrow agent.
8985 4. A statement as to whether the developer assures that the
8986 purchase price represented in or pursuant to the reservation
8987 agreement will be the price in the contract for purchase and
8988 sale or that the price represented may be exceeded within a
8989 stated amount or percentage or that no assurance is given as to
8990 the price in the contract for purchase or sale.
8991 5. A statement that the deposit must be payable to the
8992 escrow agent and that the escrow agent must provide a receipt to
8993 the prospective purchaser.
8994 (3) Upon filing as required by subsection (1), the
8995 developer shall pay to the division a filing fee of $20 for each
8996 residential unit to be sold by the developer which is described
8997 in the documents filed. If the common interest community
8998 condominium is to be built or sold in phases, the fee shall be
8999 paid prior to offering for sale units in any subsequent phase.
9000 Every developer who holds a unit or units for sale in a common
9001 interest community condominium shall submit to the division any
9002 amendments to documents or items on file with the division and
9003 deliver to purchasers all amendments prior to closing, but in no
9004 event, later than 10 days after the amendment. Upon filing of
9005 amendments to documents currently on file with the division, the
9006 developer shall pay to the division a filing fee of up to $100
9007 per filing, with the exact fee to be set by division rule.
9008 (4) Any developer who complies with this section is not
9009 required to file with any other division or agency of this state
9010 for approval to sell the units in the common interest community
9011 condominium, the information for the common interest community
9012 condominium for which he or she filed.
9013 (5) In addition to those disclosures described by ss.
9014 718.503 and 718.504, the division is authorized to require such
9015 other disclosure as deemed necessary to fully and or fairly
9016 disclose all aspects of the offering.
9017 Section 99. Section 718.503, Florida Statutes, is amended
9018 to read:
9019 718.503 Developer disclosure prior to sale; nondeveloper
9020 unit owner disclosure prior to sale; voidability.—
9021 (1) DEVELOPER DISCLOSURE.—
9022 (a) Contents of contracts.—Any contract for the sale of a
9023 residential unit or a lease thereof for an unexpired term of
9024 more than 5 years shall:
9025 1. Contain the following legend in conspicuous type: THIS
9026 AGREEMENT IS VOIDABLE BY BUYER BY DELIVERING WRITTEN NOTICE OF
9027 THE BUYER’S INTENTION TO CANCEL WITHIN 15 DAYS AFTER THE DATE OF
9028 EXECUTION OF THIS AGREEMENT BY THE BUYER, AND RECEIPT BY BUYER
9029 OF ALL OF THE ITEMS REQUIRED TO BE DELIVERED TO HIM OR HER BY
9030 THE DEVELOPER UNDER SECTION 718.503, FLORIDA STATUTES. THIS
9031 AGREEMENT IS ALSO VOIDABLE BY BUYER BY DELIVERING WRITTEN NOTICE
9032 OF THE BUYER’S INTENTION TO CANCEL WITHIN 15 DAYS AFTER THE DATE
9033 OF RECEIPT FROM THE DEVELOPER OF ANY AMENDMENT WHICH MATERIALLY
9034 ALTERS OR MODIFIES THE OFFERING IN A MANNER THAT IS ADVERSE TO
9035 THE BUYER. ANY PURPORTED WAIVER OF THESE VOIDABILITY RIGHTS
9036 SHALL BE OF NO EFFECT. BUYER MAY EXTEND THE TIME FOR CLOSING FOR
9037 A PERIOD OF NOT MORE THAN 15 DAYS AFTER THE BUYER HAS RECEIVED
9038 ALL OF THE ITEMS REQUIRED. BUYER’S RIGHT TO VOID THIS AGREEMENT
9039 SHALL TERMINATE AT CLOSING. FIGURES CONTAINED IN ANY BUDGET
9040 DELIVERED TO THE BUYER PREPARED IN ACCORDANCE WITH THE COMMON
9041 INTEREST COMMUNITY CONDOMINIUM ACT ARE ESTIMATES ONLY AND
9042 REPRESENT AN APPROXIMATION OF FUTURE EXPENSES BASED ON FACTS AND
9043 CIRCUMSTANCES EXISTING AT THE TIME OF THE PREPARATION OF THE
9044 BUDGET BY THE DEVELOPER. ACTUAL COSTS OF SUCH ITEMS MAY EXCEED
9045 THE ESTIMATED COSTS. SUCH CHANGES IN COST DO NOT CONSTITUTE
9046 MATERIAL ADVERSE CHANGES IN THE OFFERING.
9047 2. Contain the following caveat in conspicuous type on the
9048 first page of the contract: ORAL REPRESENTATIONS CANNOT BE
9049 RELIED UPON AS CORRECTLY STATING THE REPRESENTATIONS OF THE
9050 DEVELOPER. FOR CORRECT REPRESENTATIONS, REFERENCE SHOULD BE MADE
9051 TO THIS CONTRACT AND THE DOCUMENTS REQUIRED BY SECTION 718.503,
9052 FLORIDA STATUTES, TO BE FURNISHED BY A DEVELOPER TO A BUYER OR
9053 LESSEE.
9054 3. If the unit has been occupied by someone other than the
9055 buyer, contain a statement that the unit has been occupied.
9056 4. If the contract is for the sale or transfer of a unit
9057 subject to a lease, include as an exhibit a copy of the executed
9058 lease and shall contain within the text in conspicuous type: THE
9059 UNIT IS SUBJECT TO A LEASE (OR SUBLEASE).
9060 5. If the contract is for the lease of a unit for a term of
9061 5 years or more, include as an exhibit a copy of the proposed
9062 lease.
9063 6. If the contract is for the sale or lease of a unit that
9064 is subject to a lien for rent payable under a lease of a
9065 recreational facility or other commonly used facility, contain
9066 within the text the following statement in conspicuous type:
9067 THIS CONTRACT IS FOR THE TRANSFER OF A UNIT THAT IS SUBJECT TO A
9068 LIEN FOR RENT PAYABLE UNDER A LEASE OF COMMONLY USED FACILITIES.
9069 FAILURE TO PAY RENT MAY RESULT IN FORECLOSURE OF THE LIEN.
9070 7. State the name and address of the escrow agent required
9071 by s. 718.202 and state that the purchaser may obtain a receipt
9072 for his or her deposit from the escrow agent upon request.
9073 8. If the contract is for the sale or transfer of a unit in
9074 a common interest community condominium in which timeshare
9075 estates have been or may be created, contain within the text in
9076 conspicuous type: UNITS IN THIS COMMON INTEREST COMMUNITY
9077 CONDOMINIUM ARE SUBJECT TO TIMESHARE ESTATES. The contract for
9078 the sale of a fee interest in a timeshare estate shall also
9079 contain, in conspicuous type, the following: FOR THE PURPOSE OF
9080 AD VALOREM TAXES OR SPECIAL ASSESSMENTS LEVIED BY TAXING
9081 AUTHORITIES AGAINST A FEE INTEREST IN A TIMESHARE ESTATE, THE
9082 MANAGING ENTITY IS GENERALLY CONSIDERED THE TAXPAYER UNDER
9083 FLORIDA LAW. YOU HAVE THE RIGHT TO CHALLENGE AN ASSESSMENT BY A
9084 TAXING AUTHORITY RELATING TO YOUR TIMESHARE ESTATE PURSUANT TO
9085 THE PROVISIONS OF CHAPTER 194, FLORIDA STATUTES.
9086 (b) Copies of documents to be furnished to prospective
9087 buyer or lessee.—Until such time as the developer has furnished
9088 the documents listed below to a person who has entered into a
9089 contract to purchase a residential unit or lease it for more
9090 than 5 years, the contract may be voided by that person,
9091 entitling the person to a refund of any deposit together with
9092 interest thereon as provided in s. 718.202. The contract may be
9093 terminated by written notice from the proposed buyer or lessee
9094 delivered to the developer within 15 days after the buyer or
9095 lessee receives all of the documents required by this section.
9096 The developer may not close for 15 days following the execution
9097 of the agreement and delivery of the documents to the buyer as
9098 evidenced by a signed receipt for documents unless the buyer is
9099 informed in the 15-day voidability period and agrees to close
9100 prior to the expiration of the 15 days. The developer shall
9101 retain in his or her records a separate agreement signed by the
9102 buyer as proof of the buyer’s agreement to close prior to the
9103 expiration of said voidability period. Said proof shall be
9104 retained for a period of 5 years after the date of the closing
9105 of the transaction. The documents to be delivered to the
9106 prospective buyer are the prospectus or disclosure statement
9107 with all exhibits, if the development is subject to the
9108 provisions of s. 718.504, or, if not, then copies of the
9109 following which are applicable:
9110 1. The question and answer sheet described in s. 718.504,
9111 and documents declaration of the common interest community
9112 condominium, or the proposed documents declaration if the
9113 documents have declaration has not been recorded, which shall
9114 include the certificate of a surveyor approximately representing
9115 the locations required by s. 718.104.
9116 2. The documents creating the association.
9117 3. The bylaws.
9118 4. The ground lease or other underlying lease of the common
9119 interest community condominium.
9120 5. The management contract, maintenance contract, and other
9121 contracts for management of the association and operation of the
9122 common interest community condominium and facilities used by the
9123 unit owners having a service term in excess of 1 year, and any
9124 renewable management contracts that are renewable.
9125 6. The estimated operating budget for the common interest
9126 community condominium and a schedule of expenses for each type
9127 of unit, including fees assessed pursuant to s. 718.113(1) for
9128 the maintenance of limited common elements where such costs are
9129 shared only by those entitled to use the limited common
9130 elements.
9131 7. The lease of recreational and other facilities that will
9132 be used only by unit owners of the subject common interest
9133 community condominium.
9134 8. The lease of recreational and other common facilities
9135 that will be used by unit owners in common with unit owners of
9136 other common interest communities condominiums.
9137 9. The form of unit lease if the offer is for of a
9138 leasehold.
9139 10. Any declaration of servitude of properties serving the
9140 common interest community condominium but not owned by unit
9141 owners or leased to them or the association.
9142 11. If the development is to be built in phases or if the
9143 association is to manage more than one common interest community
9144 condominium, a description of the plan of phase development or
9145 the arrangements for the association to manage two or more
9146 common interest communities condominiums.
9147 12. If the common interest community condominium is a
9148 conversion of existing improvements, the statements and
9149 disclosure required by s. 718.616.
9150 13. The form of agreement for sale or lease of units.
9151 14. A copy of the floor plan of the unit and the plot plan
9152 showing the location of the residential buildings and the
9153 recreation and other common areas.
9154 15. A copy of all covenants and restrictions which will
9155 affect the use of the property and which are not contained in
9156 the foregoing.
9157 16. If the developer is required by state or local
9158 authorities to obtain acceptance or approval of any dock or
9159 marina facilities intended to serve the common interest
9160 community condominium, a copy of any such acceptance or approval
9161 acquired by the time of filing with the division under s.
9162 718.502(1), or a statement that such acceptance or approval has
9163 not been acquired or received.
9164 17. Evidence demonstrating that the developer has an
9165 ownership, leasehold, or contractual interest in the land upon
9166 which the common interest community condominium is to be
9167 developed.
9168 18. The governance form referenced in paragraph (2)(a).
9169 (c) Subsequent estimates; when provided.—If the closing on
9170 a contract occurs more than 12 months after the filing of the
9171 offering circular with the division, the developer shall provide
9172 a copy of the current estimated operating budget of the
9173 association to the buyer at closing, which shall not be
9174 considered an amendment that modifies the offering provided any
9175 changes to the association’s budget from the budget given to the
9176 buyer at the time of contract signing were the result of matters
9177 beyond the developer’s control. Changes in budgets of any master
9178 association, recreation association, or club and similar budgets
9179 for entities other than the association shall likewise not be
9180 considered amendments that modify the offering. It is the intent
9181 of this paragraph to clarify existing law.
9182 (2) NONDEVELOPER DISCLOSURE.—
9183 (a) Each unit owner who is not a developer as defined by
9184 this chapter shall comply with the provisions of this subsection
9185 prior to the sale of his or her unit. Each prospective purchaser
9186 who has entered into a contract for the purchase of a common
9187 interest community condominium unit is entitled, at the seller’s
9188 expense, to a current copy of the declaration of common interest
9189 community condominium, articles of incorporation of the
9190 association, bylaws and rules of the association, financial
9191 information required by s. 718.111, and the document entitled
9192 “Frequently Asked Questions and Answers” required by s. 718.504,
9193 and. On and after January 1, 2009, the prospective purchaser
9194 shall also be entitled to receive from the seller a copy of the
9195 a governance form referenced in this paragraph . Such form shall
9196 be provided by the division summarizing governance of common
9197 interest community condominium associations. In addition to such
9198 other information as the division considers helpful to a
9199 prospective purchaser in understanding association governance,
9200 the governance form shall address the following subjects:
9201 1. The role of the board in conducting the day-to-day
9202 affairs of the association on behalf of, and in the best
9203 interests of, the owners.
9204 2. The board’s responsibility to provide advance notice of
9205 board and membership meetings.
9206 3. The rights of owners to attend and speak at board and
9207 membership meetings.
9208 4. The responsibility of the board and of owners with
9209 respect to maintenance of the common interest community
9210 condominium property.
9211 5. The responsibility of the board and owners to abide by
9212 the common interest community condominium documents, this
9213 chapter, rules adopted by the division, and reasonable rules
9214 adopted by the board.
9215 6. Owners’ rights to inspect and copy association records
9216 and the limitations on such rights.
9217 7. Remedies available to owners with respect to actions by
9218 the board which may be abusive or beyond the board’s power and
9219 authority.
9220 8. The right of the board to hire a property management
9221 firm, subject to its own primary responsibility for such
9222 management.
9223 9. The responsibility of owners with regard to payment of
9224 regular or special assessments necessary for the operation of
9225 the property and the potential consequences of failure to pay
9226 such assessments.
9227 10. The voting rights of owners.
9228 11. Rights and obligations of the board in enforcement of
9229 rules in the common interest community condominium documents and
9230 rules adopted by the board.
9231
9232 The governance form shall also include the following statement
9233 in conspicuous type: “This publication is intended as an
9234 informal educational overview of common interest community
9235 condominium governance. In the event of a conflict, the
9236 provisions of chapter 718, Florida Statutes, rules adopted by
9237 the Division of Common Interest Communities Florida
9238 Condominiums, Timeshares, and Mobile Homes of the Department of
9239 Business and Professional Regulation, the provisions of the
9240 common interest community condominium documents, and reasonable
9241 rules adopted by the common interest community condominium
9242 association’s board of administration prevail over the contents
9243 of this publication.”
9244 (b) If a person licensed under part I of chapter 475
9245 provides to or otherwise obtains for a prospective purchaser the
9246 documents described in this subsection, the person is not liable
9247 for any error or inaccuracy contained in the documents.
9248 (c) Each contract entered into after July 1, 1992, for the
9249 resale of a residential unit shall contain in conspicuous type
9250 either:
9251 1. A clause which states: THE BUYER HEREBY ACKNOWLEDGES
9252 THAT BUYER HAS BEEN PROVIDED A CURRENT COPY OF THE DOCUMENTS
9253 DECLARATION OF THE COMMON INTEREST COMMUNITY CONDOMINIUM,
9254 ARTICLES OF INCORPORATION OF THE ASSOCIATION, BYLAWS AND RULES
9255 OF THE ASSOCIATION, AND A COPY OF THE MOST RECENT YEAR-END
9256 FINANCIAL INFORMATION AND FREQUENTLY ASKED QUESTIONS AND ANSWERS
9257 DOCUMENT MORE THAN 3 DAYS, EXCLUDING SATURDAYS, SUNDAYS, AND
9258 LEGAL HOLIDAYS, PRIOR TO EXECUTION OF THIS CONTRACT; or
9259 2. A clause which states: THIS AGREEMENT IS VOIDABLE BY
9260 BUYER BY DELIVERING WRITTEN NOTICE OF THE BUYER’S INTENTION TO
9261 CANCEL WITHIN 3 DAYS, EXCLUDING SATURDAYS, SUNDAYS, AND LEGAL
9262 HOLIDAYS, AFTER THE DATE OF EXECUTION OF THIS AGREEMENT BY THE
9263 BUYER AND RECEIPT BY BUYER OF A CURRENT COPY OF THE DOCUMENTS
9264 DECLARATION OF THE COMMON INTEREST COMMUNITY CONDOMINIUM,
9265 ARTICLES OF INCORPORATION, BYLAWS AND RULES OF THE ASSOCIATION,
9266 AND A COPY OF THE MOST RECENT YEAR-END FINANCIAL INFORMATION AND
9267 FREQUENTLY ASKED QUESTIONS AND ANSWERS DOCUMENT IF SO REQUESTED
9268 IN WRITING. ANY PURPORTED WAIVER OF THESE VOIDABILITY RIGHTS
9269 SHALL BE OF NO EFFECT. BUYER MAY EXTEND THE TIME FOR CLOSING FOR
9270 A PERIOD OF NOT MORE THAN 3 DAYS, EXCLUDING SATURDAYS, SUNDAYS,
9271 AND LEGAL HOLIDAYS, AFTER THE BUYER RECEIVES THE DOCUMENTS
9272 DECLARATION, ARTICLES OF INCORPORATION, BYLAWS AND RULES OF THE
9273 ASSOCIATION, AND A COPY OF THE MOST RECENT YEAR-END FINANCIAL
9274 INFORMATION AND FREQUENTLY ASKED QUESTIONS AND ANSWERS DOCUMENT
9275 IF REQUESTED IN WRITING. BUYER’S RIGHT TO VOID THIS AGREEMENT
9276 SHALL TERMINATE AT CLOSING.
9277
9278 A contract that does not conform to the requirements of this
9279 paragraph is voidable at the option of the purchaser prior to
9280 closing.
9281 (3) OTHER DISCLOSURE.—
9282 (a) If residential common interest community condominium
9283 parcels are offered for sale or lease prior to completion of
9284 construction of the units and of improvements to the common
9285 elements, or prior to completion of remodeling of previously
9286 occupied buildings, the developer shall make available to each
9287 prospective purchaser or lessee, for his or her inspection at a
9288 place convenient to the site, a copy of the complete plans and
9289 specifications for the construction or remodeling of the unit
9290 offered to him or her and of the improvements to the common
9291 elements appurtenant to the unit.
9292 (b) Sales brochures, if any, shall be provided to each
9293 purchaser, and the following caveat in conspicuous type shall be
9294 placed on the inside front cover or on the first page containing
9295 text material of the sales brochure, or otherwise conspicuously
9296 displayed: ORAL REPRESENTATIONS CANNOT BE RELIED UPON AS
9297 CORRECTLY STATING REPRESENTATIONS OF THE DEVELOPER. FOR CORRECT
9298 REPRESENTATIONS, MAKE REFERENCE TO THIS BROCHURE AND TO THE
9299 DOCUMENTS REQUIRED BY SECTION 718.503, FLORIDA STATUTES, TO BE
9300 FURNISHED BY A DEVELOPER TO A BUYER OR LESSEE. If timeshare
9301 estates have been or may be created with respect to any unit in
9302 the common interest community condominium, the sales brochure
9303 shall contain the following statement in conspicuous type: UNITS
9304 IN THIS COMMON INTEREST COMMUNITY CONDOMINIUM ARE SUBJECT TO
9305 TIMESHARE ESTATES.
9306 Section 100. Section 718.504, Florida Statutes, is amended
9307 to read:
9308 718.504 Prospectus or offering circular.—Every developer of
9309 a residential common interest community that condominium which
9310 contains more than 20 residential units, or that which is part
9311 of a group of residential common interest communities
9312 condominiums which will be served by property to be used in
9313 common by unit owners of more than 20 residential units, shall
9314 prepare a prospectus or offering circular and file it with the
9315 Division of Common Interest Communities before Florida
9316 Condominiums, Timeshares, and Mobile Homes prior to entering
9317 into an enforceable contract of purchase and sale of any unit or
9318 lease of a unit for more than 5 years and shall furnish a copy
9319 of the prospectus or offering circular to each buyer. In
9320 addition to the prospectus or offering circular, each buyer
9321 shall be furnished a separate page entitled “Frequently Asked
9322 Questions and Answers,” which shall be in accordance with a
9323 format approved by the division and a copy of the financial
9324 information required by s. 718.111. This page shall, in readable
9325 language, inform prospective purchasers regarding their voting
9326 rights and unit use restrictions, including restrictions on the
9327 leasing of a unit; shall indicate whether and in what amount the
9328 unit owners or the association is obligated to pay rent or land
9329 use fees for recreational or other commonly used facilities;
9330 shall contain a statement identifying that amount of assessment
9331 which, pursuant to the budget, would be levied upon each unit
9332 type, exclusive of any special assessments, and which shall
9333 further identify the basis upon which assessments are levied,
9334 whether monthly, quarterly, or otherwise; shall state and
9335 identify any court cases in which the association is currently a
9336 party of record in which the association may face liability in
9337 excess of $100,000; and which shall further state whether
9338 membership in a recreational facilities association is
9339 mandatory, and if so, shall identify the fees currently charged
9340 per unit type. The division shall by rule require such other
9341 disclosure as in its judgment will assist prospective
9342 purchasers. The prospectus or offering circular may include more
9343 than one common interest community condominium, although not all
9344 such units are being offered for sale as of the date of the
9345 prospectus or offering circular. The prospectus or offering
9346 circular must contain the following information:
9347 (1) The front cover or the first page must contain only:
9348 (a) The name of the common interest community condominium.
9349 (b) The following statements in conspicuous type:
9350 1. THIS PROSPECTUS (OFFERING CIRCULAR) CONTAINS IMPORTANT
9351 MATTERS TO BE CONSIDERED IN ACQUIRING A COMMON INTEREST
9352 COMMUNITY CONDOMINIUM UNIT.
9353 2. THE STATEMENTS CONTAINED HEREIN ARE ONLY SUMMARY IN
9354 NATURE. A PROSPECTIVE PURCHASER SHOULD REFER TO ALL REFERENCES,
9355 ALL EXHIBITS HERETO, THE CONTRACT DOCUMENTS, AND SALES
9356 MATERIALS.
9357 3. ORAL REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY
9358 STATING THE REPRESENTATIONS OF THE DEVELOPER. REFER TO THIS
9359 PROSPECTUS (OFFERING CIRCULAR) AND ITS EXHIBITS FOR CORRECT
9360 REPRESENTATIONS.
9361 (2) Summary: The next page must contain all statements
9362 required to be in conspicuous type in the prospectus or offering
9363 circular.
9364 (3) A separate index of the contents and exhibits of the
9365 prospectus.
9366 (4) Beginning on the first page of the text (not including
9367 the summary and index), a description of the common interest
9368 community condominium, including, but not limited to, the
9369 following information:
9370 (a) Its name and location.
9371 (b) A description of the common interest community
9372 condominium property, including, without limitation:
9373 1. The number of buildings, the number of units in each
9374 building, the number of bathrooms and bedrooms in each unit, and
9375 the total number of units, if the common interest community
9376 condominium is not a phase common interest community
9377 condominium, or the maximum number of buildings that may be
9378 contained within the common interest community condominium, the
9379 minimum and maximum numbers of units in each building, the
9380 minimum and maximum numbers of bathrooms and bedrooms that may
9381 be contained in each unit, and the maximum number of units that
9382 may be contained within the common interest community
9383 condominium, if the common interest community condominium is a
9384 phase common interest community condominium.
9385 2. The page in the common interest community condominium
9386 documents where a copy of the plot plan and survey of the common
9387 interest community condominium is located.
9388 3. The estimated latest date of completion of constructing,
9389 finishing, and equipping. In lieu of a date, the description
9390 shall include a statement that the estimated date of completion
9391 of the common interest community condominium is in the purchase
9392 agreement and a reference to the article or paragraph containing
9393 that information.
9394 (c) The maximum number of units that will use facilities in
9395 common with the common interest community condominium. If the
9396 maximum number of units will vary, a description of the basis
9397 for variation and the minimum amount of dollars per unit to be
9398 spent for additional recreational facilities or enlargement of
9399 such facilities. If the addition or enlargement of facilities
9400 will result in a material increase of a unit owner’s maintenance
9401 expense or rental expense, if any, the maximum increase and
9402 limitations thereon shall be stated.
9403 (5)(a) A statement in conspicuous type describing whether
9404 the common interest community condominium is created and being
9405 sold as fee simple interests or as leasehold interests. If the
9406 common interest community condominium is created or being sold
9407 on a leasehold, the location of the lease in the disclosure
9408 materials shall be stated.
9409 (b) If timeshare estates are or may be created with respect
9410 to any unit in the common interest community condominium, a
9411 statement in conspicuous type stating that timeshare estates are
9412 created and being sold in units in the common interest community
9413 condominium.
9414 (6) A description of the recreational and other commonly
9415 used facilities that will be used only by unit owners of the
9416 common interest community condominium, including, but not
9417 limited to, the following:
9418 (a) Each room and its intended purposes, location,
9419 approximate floor area, and capacity in numbers of people.
9420 (b) Each swimming pool, as to its general location,
9421 approximate size and depths, approximate deck size and capacity,
9422 and whether heated.
9423 (c) Additional facilities, as to the number of each
9424 facility, its approximate location, approximate size, and
9425 approximate capacity.
9426 (d) A general description of the items of personal property
9427 and the approximate number of each item of personal property
9428 that the developer is committing to furnish for each room or
9429 other facility or, in the alternative, a representation as to
9430 the minimum amount of expenditure that will be made to purchase
9431 the personal property for the facility.
9432 (e) The estimated date when each room or other facility
9433 will be available for use by the unit owners.
9434 (f)1. An identification of each room or other facility to
9435 be used by unit owners that will not be owned by the unit owners
9436 or the association;
9437 2. A reference to the location in the disclosure materials
9438 of the lease or other agreements providing for the use of those
9439 facilities; and
9440 3. A description of the terms of the lease or other
9441 agreements, including the length of the term; the rent payable,
9442 directly or indirectly, by each unit owner, and the total rent
9443 payable to the lessor, stated in monthly and annual amounts for
9444 the entire term of the lease; and a description of any option to
9445 purchase the property leased under any such lease, including the
9446 time the option may be exercised, the purchase price or how it
9447 is to be determined, the manner of payment, and whether the
9448 option may be exercised for a unit owner’s share or only as to
9449 the entire leased property.
9450 (g) A statement as to whether the developer may provide
9451 additional facilities not described above; their general
9452 locations and types; improvements or changes that may be made;
9453 the approximate dollar amount to be expended; and the maximum
9454 additional common expense or cost to the individual unit owners
9455 that may be charged during the first annual period of operation
9456 of the modified or added facilities.
9457
9458 Descriptions as to locations, areas, capacities, numbers,
9459 volumes, or sizes may be stated as approximations or minimums.
9460 (7) A description of the recreational and other facilities
9461 that will be used in common with other common interest
9462 communities condominiums, community associations, or planned
9463 developments which require the payment of the maintenance and
9464 expenses of such facilities, directly or indirectly, by the unit
9465 owners. The description shall include, but not be limited to,
9466 the following:
9467 (a) Each building and facility committed to be built.
9468 (b) Facilities not committed to be built except under
9469 certain conditions, and a statement of those conditions or
9470 contingencies.
9471 (c) As to each facility committed to be built, or which
9472 will be committed to be built upon the happening of one of the
9473 conditions in paragraph (b), a statement of whether it will be
9474 owned by the unit owners having the use thereof or by an
9475 association or other entity which will be controlled by them, or
9476 others, and the location in the exhibits of the lease or other
9477 document providing for use of those facilities.
9478 (d) The year in which each facility will be available for
9479 use by the unit owners or, in the alternative, the maximum
9480 number of unit owners in the project at the time each of all of
9481 the facilities is committed to be completed.
9482 (e) A general description of the items of personal
9483 property, and the approximate number of each item of personal
9484 property, that the developer is committing to furnish for each
9485 room or other facility or, in the alternative, a representation
9486 as to the minimum amount of expenditure that will be made to
9487 purchase the personal property for the facility.
9488 (f) If there are leases, a description thereof, including
9489 the length of the term, the rent payable, and a description of
9490 any option to purchase option.
9491
9492 Descriptions shall include location, areas, capacities, numbers,
9493 volumes, or sizes and may be stated as approximations or
9494 minimums.
9495 (8) Recreation lease or associated club membership:
9496 (a) If any recreational facilities or other facilities
9497 offered by the developer and available to, or to be used by,
9498 unit owners are to be leased or have club membership associated,
9499 the following statement in conspicuous type shall be included:
9500 THERE IS A RECREATIONAL FACILITIES LEASE ASSOCIATED WITH THIS
9501 COMMON INTEREST COMMUNITY CONDOMINIUM; or, THERE IS A CLUB
9502 MEMBERSHIP ASSOCIATED WITH THIS COMMON INTEREST COMMUNITY
9503 CONDOMINIUM. There shall be a reference to the location in the
9504 disclosure materials where the recreation lease or club
9505 membership is described in detail.
9506 (b) If it is mandatory that unit owners pay a fee, rent,
9507 dues, or other charges under a recreational facilities lease or
9508 club membership for the use of facilities, there shall be in
9509 conspicuous type the applicable statement:
9510 1. MEMBERSHIP IN THE RECREATIONAL FACILITIES CLUB IS
9511 MANDATORY FOR UNIT OWNERS; or
9512 2. UNIT OWNERS ARE REQUIRED, AS A CONDITION OF OWNERSHIP,
9513 TO BE LESSEES UNDER THE RECREATIONAL FACILITIES LEASE; or
9514 3. UNIT OWNERS ARE REQUIRED TO PAY THEIR SHARE OF THE COSTS
9515 AND EXPENSES OF MAINTENANCE, MANAGEMENT, UPKEEP, REPLACEMENT,
9516 RENT, AND FEES UNDER THE RECREATIONAL FACILITIES LEASE (OR THE
9517 OTHER INSTRUMENTS PROVIDING THE FACILITIES); or
9518 4. A similar statement of the nature of the organization or
9519 the manner in which the use rights are created, and that unit
9520 owners are required to pay.
9521
9522 Immediately following the applicable statement, the location in
9523 the disclosure materials where the development is described in
9524 detail shall be stated.
9525 (c) If the developer, or any other person other than the
9526 unit owners and other persons having use rights in the
9527 facilities, reserves, or is entitled to receive, any rent, fee,
9528 or other payment for the use of the facilities, then there shall
9529 be the following statement in conspicuous type: THE UNIT OWNERS
9530 OR THE ASSOCIATION(S) MUST PAY RENT OR LAND USE FEES FOR
9531 RECREATIONAL OR OTHER COMMONLY USED FACILITIES. Immediately
9532 following this statement, the location in the disclosure
9533 materials where the rent or fees for land use fees are described
9534 in detail shall be stated.
9535 (d) If, in any recreation format, whether leasehold, club,
9536 or other, any person other than the association has the right to
9537 a lien on the units to secure the payment of assessments, rent,
9538 or other exactions, there shall appear a statement in
9539 conspicuous type in substantially the following form:
9540 1. THERE IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO
9541 SECURE THE PAYMENT OF RENT AND OTHER EXACTIONS UNDER THE
9542 RECREATION LEASE. THE UNIT OWNER’S FAILURE TO MAKE THESE
9543 PAYMENTS MAY RESULT IN FORECLOSURE OF THE LIEN; or
9544 2. THERE IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO
9545 SECURE THE PAYMENT OF ASSESSMENTS OR OTHER EXACTIONS COMING DUE
9546 FOR THE USE, MAINTENANCE, UPKEEP, OR REPAIR OF THE RECREATIONAL
9547 OR COMMONLY USED FACILITIES. THE UNIT OWNER’S FAILURE TO MAKE
9548 THESE PAYMENTS MAY RESULT IN FORECLOSURE OF THE LIEN.
9549
9550 Immediately following the applicable statement, the location in
9551 the disclosure materials where the lien or lien right is
9552 described in detail shall be stated.
9553 (9) If the developer or any other person has the right to
9554 increase or add to the recreational facilities at any time after
9555 the establishment of the common interest community condominium
9556 whose unit owners have use rights therein, without the consent
9557 of the unit owners or associations being required, there shall
9558 appear a statement in conspicuous type in substantially the
9559 following form: RECREATIONAL FACILITIES MAY BE EXPANDED OR ADDED
9560 WITHOUT CONSENT OF UNIT OWNERS OR THE ASSOCIATION(S).
9561 Immediately following this statement, the location in the
9562 disclosure materials where such reserved rights are described
9563 shall be stated.
9564 (10) A statement of whether the developer’s plan includes a
9565 program of leasing units rather than selling them, or leasing
9566 units and selling them subject to such leases. If so, there
9567 shall be a description of the plan, including the number and
9568 identification of the units and the provisions and term of the
9569 proposed leases, and a statement in boldfaced type that: THE
9570 UNITS MAY BE TRANSFERRED SUBJECT TO A LEASE.
9571 (11) The arrangements for management of the association and
9572 maintenance and operation of the common interest community
9573 condominium property and of other property that will serve the
9574 unit owners of the common interest community condominium
9575 property, and a description of the management contract and all
9576 other contracts for these purposes having a term in excess of 1
9577 year, including the following:
9578 (a) The names of contracting parties.
9579 (b) The term of the contract.
9580 (c) The nature of the services included.
9581 (d) The compensation, stated on a monthly and annual basis,
9582 and provisions for increases in the compensation.
9583 (e) A reference to the volumes and pages of the common
9584 interest community condominium documents and of the exhibits
9585 containing copies of such contracts.
9586
9587 Copies of all described contracts shall be attached as exhibits.
9588 If there is a contract for the management of the common interest
9589 community condominium property, then a statement in conspicuous
9590 type in substantially the following form shall appear,
9591 identifying the proposed or existing contract manager: THERE IS
9592 (IS TO BE) A CONTRACT FOR THE MANAGEMENT OF THE COMMON INTEREST
9593 COMMUNITY CONDOMINIUM PROPERTY WITH (NAME OF THE CONTRACT
9594 MANAGER). Immediately following this statement, the location in
9595 the disclosure materials of the contract for management of the
9596 common interest community condominium property shall be stated.
9597 (12) If the developer or any other person or persons other
9598 than the unit owners has the right to retain control of the
9599 board of administration of the association for a period of time
9600 which can exceed 1 year after the closing of the sale of a
9601 majority of the units in that common interest community
9602 condominium to persons other than successors or alternate
9603 developers, then a statement in conspicuous type in
9604 substantially the following form shall be included: THE
9605 DEVELOPER (OR OTHER PERSON) HAS THE RIGHT TO RETAIN CONTROL OF
9606 THE ASSOCIATION AFTER A MAJORITY OF THE UNITS HAVE BEEN SOLD.
9607 Immediately following this statement, the location in the
9608 disclosure materials where this right to control is described in
9609 detail shall be stated.
9610 (13) If there are any restrictions upon the sale, transfer,
9611 conveyance, or leasing of a unit, then a statement in
9612 conspicuous type in substantially the following form shall be
9613 included: THE SALE, LEASE, OR TRANSFER OF UNITS IS RESTRICTED OR
9614 CONTROLLED. Immediately following this statement, the location
9615 in the disclosure materials where the restriction, limitation,
9616 or control on the sale, lease, or transfer of units is described
9617 in detail shall be stated.
9618 (14) If the common interest community condominium is part
9619 of a phase project, the following information shall be stated:
9620 (a) A statement in conspicuous type in substantially the
9621 following form: THIS IS A PHASE COMMON INTEREST COMMUNITY
9622 CONDOMINIUM. ADDITIONAL LAND AND UNITS MAY BE ADDED TO THIS
9623 COMMON INTEREST COMMUNITY CONDOMINIUM. Immediately following
9624 this statement, the location in the disclosure materials where
9625 the phasing is described shall be stated.
9626 (b) A summary of the provisions of the declaration which
9627 provide for the phasing.
9628 (c) A statement as to whether or not residential buildings
9629 and units which are added to the common interest community
9630 condominium may be substantially different from the residential
9631 buildings and units originally in the common interest community
9632 condominium. If the added residential buildings and units may be
9633 substantially different, there shall be a general description of
9634 the extent to which such added residential buildings and units
9635 may differ, and a statement in conspicuous type in substantially
9636 the following form shall be included: BUILDINGS AND UNITS WHICH
9637 ARE ADDED TO THE COMMON INTEREST COMMUNITY CONDOMINIUM MAY BE
9638 SUBSTANTIALLY DIFFERENT FROM THE OTHER BUILDINGS AND UNITS IN
9639 THE COMMON INTEREST COMMUNITY CONDOMINIUM. Immediately following
9640 this statement, the location in the disclosure materials where
9641 the extent to which added residential buildings and units may
9642 substantially differ is described shall be stated.
9643 (d) A statement of the maximum number of buildings
9644 containing units, the maximum and minimum numbers of units in
9645 each building, the maximum number of units, and the minimum and
9646 maximum square footage of the units that may be contained within
9647 each parcel of land which may be added to the common interest
9648 community condominium.
9649 (15) If a common interest community condominium created on
9650 or after July 1, 2000, is or may become part of a multi-common
9651 interest community multicondominium, the following information
9652 must be provided:
9653 (a) A statement in conspicuous type in substantially the
9654 following form: THIS COMMON INTEREST COMMUNITY CONDOMINIUM IS
9655 (MAY BE) PART OF A MULTI-COMMON INTEREST COMMUNITY
9656 MULTICONDOMINIUM DEVELOPMENT IN WHICH OTHER COMMON INTEREST
9657 COMMUNITIES CONDOMINIUMS WILL (MAY) BE OPERATED BY THE SAME
9658 ASSOCIATION. Immediately following this statement, the location
9659 in the prospectus or offering circular and its exhibits where
9660 the multi-common interest community multicondominium aspects of
9661 the offering are described must be stated.
9662 (b) A summary of the provisions in the declaration,
9663 articles of incorporation, and bylaws which establish and
9664 provide for the operation of the multi-common interest community
9665 multicondominium, including a statement as to whether unit
9666 owners in the common interest community condominium will have
9667 the right to use recreational or other facilities located or
9668 planned to be located in other common interest communities
9669 condominiums operated by the same association, and the manner of
9670 sharing the common expenses related to such facilities.
9671 (c) A statement of the minimum and maximum number of common
9672 interest communities condominiums, and the minimum and maximum
9673 number of units in each of those common interest communities
9674 condominiums, which will or may be operated by the association,
9675 and the latest date by which the exact number will be finally
9676 determined.
9677 (d) A statement as to whether any of the common interest
9678 communities condominiums in the multi-common interest community
9679 multicondominium may include units intended to be used for
9680 nonresidential purposes and the purpose or purposes permitted
9681 for such use.
9682 (e) A general description of the location and approximate
9683 acreage of any land on which any additional common interest
9684 communities condominiums to be operated by the association may
9685 be located.
9686 (16) If the common interest community condominium is
9687 created by conversion of existing improvements, the following
9688 information shall be stated:
9689 (a) The information required by s. 718.616.
9690 (b) A caveat that there are no express warranties unless
9691 they are stated in writing by the developer.
9692 (17) A summary of the restrictions, if any, to be imposed
9693 on units concerning the use of any of the common interest
9694 community condominium property, including statements as to
9695 whether there are restrictions upon children and pets, and
9696 reference to the volumes and pages of the common interest
9697 community condominium documents where such restrictions are
9698 found, or if such restrictions are contained elsewhere, then a
9699 copy of the documents containing the restrictions shall be
9700 attached as an exhibit.
9701 (18) If there is any land that is offered by the developer
9702 for use by the unit owners and that is neither owned by them nor
9703 leased to them, the association, or any entity controlled by
9704 unit owners and other persons having the use rights to such
9705 land, a statement shall be made as to how such land will serve
9706 the common interest community condominium. If any part of such
9707 land will serve the common interest community condominium, the
9708 statement shall describe the land and the nature and term of
9709 service, and the declaration or other instrument creating such
9710 servitude shall be included as an exhibit.
9711 (19) The manner in which utility and other services,
9712 including, but not limited to, sewage and waste disposal, water
9713 supply, and storm drainage, will be provided and the person or
9714 entity furnishing them.
9715 (20) An explanation of the manner in which the
9716 apportionment of common expenses and ownership of the common
9717 elements has been determined.
9718 (21) An estimated operating budget for the common interest
9719 community condominium and the association, and a schedule of the
9720 unit owner’s expenses shall be attached as an exhibit and shall
9721 contain the following information:
9722 (a) The estimated monthly and annual expenses of the common
9723 interest community condominium and the association that are
9724 collected from unit owners by assessments.
9725 (b) The estimated monthly and annual expenses of each unit
9726 owner for a unit, other than common expenses paid by all unit
9727 owners, payable by the unit owner to persons or entities other
9728 than the association, as well as to the association, including
9729 fees assessed pursuant to s. 718.113(1) for maintenance of
9730 limited common elements where such costs are shared only by
9731 those entitled to use the limited common element, and the total
9732 estimated monthly and annual expense. There may be excluded from
9733 this estimate expenses which are not provided for or
9734 contemplated by the common interest community condominium
9735 documents, including, but not limited to, the costs of private
9736 telephone; maintenance of the interior of common interest
9737 community condominium units, which is not the obligation of the
9738 association; maid or janitorial services privately contracted
9739 for by the unit owners; utility bills billed directly to each
9740 unit owner for utility services to his or her unit; insurance
9741 premiums other than those incurred for policies obtained by the
9742 common interest community condominium; and similar personal
9743 expenses of the unit owner. A unit owner’s estimated payments
9744 for assessments shall also be stated in the estimated amounts
9745 for the times when they will be due.
9746 (c) The estimated items of expenses of the common interest
9747 community condominium and the association, except as excluded
9748 under paragraph (b), including, but not limited to, the
9749 following items, which shall be stated as an association expense
9750 collectible by assessments or as unit owners’ expenses payable
9751 to persons other than the association:
9752 1. Expenses for the association and common interest
9753 community condominium:
9754 a. Administration of the association.
9755 b. Management fees.
9756 c. Maintenance.
9757 d. Rent for recreational and other commonly used
9758 facilities.
9759 e. Taxes upon association property.
9760 f. Taxes upon leased areas.
9761 g. Insurance.
9762 h. Security provisions.
9763 i. Other expenses.
9764 j. Operating capital.
9765 k. Reserves.
9766 l. Fees payable to the division.
9767 2. Reserve requirements to provide sufficient information
9768 to document budgetary requirements as provided in s.
9769 718.112(2)(g), including:
9770 a. Specifications of roofing installation.
9771 b. Number of squares of roofing per building.
9772 c. Number of squares of roofing for all association
9773 buildings.
9774 d. Square footage of painted surfaces and applied paint
9775 specifications.
9776 e. Square yards and type of paving.
9777 f. Square footage of pool surfaces.
9778 g. Specifications of any item for which the full funding of
9779 the deferred maintenance expense or replacement cost would
9780 require a reserve contribution of more than $600 per year for
9781 any unit within the association.
9782 3.2. Expenses for a unit owner:
9783 a. Rent for the unit, if subject to a lease.
9784 b. Rent payable by the unit owner directly to the lessor or
9785 agent under any recreational lease or lease for the use of
9786 commonly used facilities, which use and payment is a mandatory
9787 condition of ownership and is not included in the common expense
9788 or assessments for common maintenance paid by the unit owners to
9789 the association.
9790 (d) The following statement in conspicuous type: THE BUDGET
9791 CONTAINED IN THIS OFFERING CIRCULAR HAS BEEN PREPARED IN
9792 ACCORDANCE WITH THE COMMON INTEREST COMMUNITY CONDOMINIUM ACT
9793 AND IS A GOOD FAITH ESTIMATE ONLY AND REPRESENTS AN
9794 APPROXIMATION OF FUTURE EXPENSES BASED ON FACTS AND
9795 CIRCUMSTANCES EXISTING AT THE TIME OF ITS PREPARATION. ACTUAL
9796 COSTS OF SUCH ITEMS MAY EXCEED THE ESTIMATED COSTS. SUCH CHANGES
9797 IN COST DO NOT CONSTITUTE MATERIAL ADVERSE CHANGES IN THE
9798 OFFERING.
9799 (e) Each budget for an association prepared by a developer
9800 consistent with this subsection shall be prepared in good faith
9801 and shall reflect accurate estimated amounts for the required
9802 items in paragraph (c) at the time of the filing of the offering
9803 circular with the division, and subsequent increased amounts of
9804 any item included in the association’s estimated budget that are
9805 beyond the control of the developer shall not be considered an
9806 amendment that would give rise to rescission rights set forth in
9807 s. 718.503(1)(a) or (b), nor shall such increases modify, void,
9808 or otherwise affect any guarantee of the developer contained in
9809 the offering circular or any purchase contract. It is the intent
9810 of this paragraph to clarify existing law.
9811 (f) The estimated amounts shall be stated for a period of
9812 at least 12 months and may distinguish between the periods
9813 period prior to the time unit owners other than the developer
9814 elect a majority of the board of administration and the period
9815 after that date.
9816 (22) A schedule of estimated closing expenses to be paid by
9817 a buyer or lessee of a unit and a statement of whether title
9818 opinion or title insurance policy is available to the buyer and,
9819 if so, at whose expense.
9820 (23) The identity of the developer and the chief operating
9821 officer or principal directing the creation and sale of the
9822 common interest community condominium and a statement of its and
9823 his or her experience in this field.
9824 (24) Copies of the following, to the extent they are
9825 applicable, shall be included as exhibits:
9826 (a) The documents declaration of the common interest
9827 community condominium, or the proposed documents declaration if
9828 the documents have declaration has not been recorded.
9829 (b) The articles of incorporation creating the association.
9830 (c) The bylaws of the association.
9831 (d) The ground lease or other underlying lease of the
9832 common interest community condominium.
9833 (e) The management agreement and all maintenance and other
9834 contracts for management of the association and operation of the
9835 common interest community condominium and facilities used by the
9836 unit owners having a service term in excess of 1 year.
9837 (f) The estimated operating budget for the common interest
9838 community condominium and the required schedule of unit owners’
9839 expenses.
9840 (g) A copy of the floor plan of the unit and the plot plan
9841 showing the location of the residential buildings and the
9842 recreation and other common areas.
9843 (h) The lease of recreational and other facilities that
9844 will be used only by unit owners of the subject common interest
9845 community condominium.
9846 (i) The lease of facilities used by owners and others.
9847 (j) The form of unit lease, if the offer is of a leasehold.
9848 (k) A declaration of servitude of properties serving the
9849 common interest community condominium but not owned by unit
9850 owners or leased to them or the association.
9851 (l) The statement of condition of the existing building or
9852 buildings, if the offering is of units in an operation being
9853 converted to common interest community condominium ownership.
9854 (m) The statement of inspection for termite damage and
9855 treatment of the existing improvements, if the common interest
9856 community condominium is a conversion.
9857 (n) The form of agreement for sale or lease of units.
9858 (o) A copy of the agreement for escrow of payments made to
9859 the developer prior to closing.
9860 (p) A copy of the documents containing any restrictions on
9861 use of the property required by subsection (17).
9862 (q) A copy of the governance form as referenced in s.
9863 718.503(2)(a).
9864 (25) Any prospectus or offering circular complying, prior
9865 to the effective date of this act, with the provisions of former
9866 ss. 711.69 and 711.802 may continue to be used without amendment
9867 or may be amended to comply with this chapter.
9868 (26) A brief narrative description of the location and
9869 effect of all existing and intended easements located or to be
9870 located on the common interest community condominium property
9871 other than those described in the documents declaration.
9872 (27) If the developer is required by state or local
9873 authorities to obtain acceptance or approval of any dock or
9874 marina facilities intended to serve the common interest
9875 community condominium, a copy of any such acceptance or approval
9876 acquired by the time of filing with the division under s.
9877 718.502(1) or a statement that such acceptance or approval has
9878 not been acquired or received.
9879 (28) Evidence demonstrating that the developer has an
9880 ownership, leasehold, or contractual interest in the land upon
9881 which the common interest community condominium is to be
9882 developed.
9883 Section 101. Section 718.506, Florida Statutes, is amended
9884 to read:
9885 718.506 Publication of false and misleading information.—
9886 (1) Any person who, in reasonable reliance upon any
9887 material statement or information that is false or misleading
9888 and published by or under authority from the developer in
9889 advertising and promotional materials, including, but not
9890 limited to, a prospectus, the items required as exhibits to a
9891 prospectus, brochures, and newspaper advertising, pays anything
9892 of value toward the purchase of a common interest community
9893 condominium parcel located in this state shall have a cause of
9894 action to rescind the contract or collect damages from the
9895 developer for his or her loss prior to the closing of the
9896 transaction. After the closing of the transaction, the purchaser
9897 shall have a cause of action against the developer for damages
9898 under this section from the time of closing until 1 year after
9899 the date upon which the last of the events described in
9900 paragraphs (a) through (d) shall occur:
9901 (a) The closing of the transaction;
9902 (b) The first issuance by the applicable governmental
9903 authority of a certificate of occupancy or other evidence of
9904 sufficient completion of construction of the building containing
9905 the unit to allow lawful occupancy of the unit. In counties or
9906 municipalities in which certificates of occupancy or other
9907 evidences of completion sufficient to allow lawful occupancy are
9908 not customarily issued, for the purpose of this section,
9909 evidence of lawful occupancy shall be deemed to be given or
9910 issued upon the date that such lawful occupancy of the unit may
9911 first be allowed under prevailing applicable laws, ordinances,
9912 or statutes;
9913 (c) The completion by the developer of the common elements
9914 and such recreational facilities, whether or not the same are
9915 common elements, which the developer is obligated to complete or
9916 provide under the terms of the written contract or written
9917 agreement for purchase or lease of the unit; or
9918 (d) In the event there shall not be a written contract or
9919 agreement for sale or lease of the unit, then the completion by
9920 the developer of the common elements and such recreational
9921 facilities, whether or not the same are common elements, which
9922 the developer would be obligated to complete under any rule of
9923 law applicable to the developer’s obligation.
9924
9925 Under no circumstances shall a cause of action created or
9926 recognized under this section survive for a period of more than
9927 5 years after the closing of the transaction.
9928 (2) In any action for relief under this section or under s.
9929 718.503, the prevailing party shall be entitled to recover
9930 reasonable attorney attorney’s fees.
9931 Section 102. Section 718.507, Florida Statutes, is amended
9932 to read:
9933 718.507 Zoning and building laws, ordinances, and
9934 regulations.—All laws, ordinances, and regulations concerning
9935 buildings or zoning shall be construed and applied with
9936 reference to the nature and use of such property, without regard
9937 to the form of ownership. No law, ordinance, or regulation shall
9938 establish any requirement concerning the use, location,
9939 placement, or construction of buildings or other improvements
9940 which are, or may thereafter be, subjected to the common
9941 interest community condominium form of ownership, unless such
9942 requirement shall be equally applicable to all buildings and
9943 improvements of the same kind not then, or thereafter to be,
9944 subjected to the common interest community condominium form of
9945 ownership. This section does not apply if the owner in fee of
9946 any land enters into and records a covenant that existing
9947 improvements or improvements to be constructed shall not be
9948 converted to the common interest community condominium form of
9949 residential ownership prior to 5 years after the later of the
9950 date of the covenant or completion date of the improvements.
9951 Such covenant shall be entered into with the governing body of
9952 the municipality in which the land is located or, if the land is
9953 not located in a municipality, with the governing body of the
9954 county in which the land is located.
9955 Section 103. Section 718.508, Florida Statutes, is amended
9956 to read:
9957 718.508 Regulation by Division of Hotels and Restaurants.
9958 In addition to the authority, regulation, or control exercised
9959 by the Division of Common Interest Communities Florida
9960 Condominiums, Timeshares, and Mobile Homes pursuant to this act
9961 with respect to common interest communities condominiums,
9962 buildings included in a common interest community condominium
9963 property are subject to the authority, regulation, or control of
9964 the Division of Hotels and Restaurants of the Department of
9965 Business and Professional Regulation, to the extent provided in
9966 chapter 399.
9967 Section 104. Section 718.509, Florida Statutes, is amended
9968 to read:
9969 718.509 Division of Common Interest Communities Florida
9970 Condominiums, Timeshares, and Mobile Homes Trust Fund.—
9971 (1) There is created within the State Treasury the Division
9972 of Common Interest Communities Florida Condominiums, Timeshares,
9973 and Mobile Homes Trust Fund to be used for the administration
9974 and operation of this chapter and chapters 718, 719, 721, and
9975 723 by the division.
9976 (2) All moneys collected by the division from fees, fines,
9977 or penalties or from costs awarded to the division by a court or
9978 administrative final order shall be paid into the Division of
9979 Common Interest Communities Florida Condominiums, Timeshares,
9980 and Mobile Homes Trust Fund. The Legislature shall appropriate
9981 funds from this trust fund sufficient to carry out the
9982 provisions of this chapter and the provisions of law with
9983 respect to each category of business covered by the trust fund.
9984 The division shall maintain separate revenue accounts in the
9985 trust fund for each of the businesses regulated by the division.
9986 The division shall provide for the proportionate allocation
9987 among the accounts of expenses incurred by the division in the
9988 performance of its duties with respect to each of these
9989 businesses. As part of its normal budgetary process, the
9990 division shall prepare an annual report of revenue and allocated
9991 expenses related to the operation of each of these businesses
9992 which may be used to determine fees charged by the division.
9993 This subsection shall operate pursuant to the provisions of s.
9994 215.20.
9995 Section 105. Section 718.604, Florida Statutes, is amended
9996 to read:
9997 718.604 Short title.—This part shall be known and may be
9998 cited as the “Roth Act” in memory of Mr. James S. Roth,
9999 Director, Division of Florida Land Sales and Condominiums, 1979
10000 1980.
10001 Section 106. Section 718.606, Florida Statutes, is amended
10002 to read:
10003 718.606 Conversion of existing improvements to common
10004 interest community condominium; rental agreements.—When existing
10005 improvements are converted to ownership as a residential common
10006 interest community condominium:
10007 (1)(a) Each residential tenant who has resided in the
10008 existing improvements for at least the 180 days preceding the
10009 date of the written notice of intended conversion shall have the
10010 right to extend an expiring rental agreement upon the same terms
10011 for a period that will expire no later than 270 days after the
10012 date of the notice. If the rental agreement expires more than
10013 270 days after the date of the notice, the tenant may not
10014 unilaterally extend the rental agreement.
10015 (b) Each other residential tenant shall have the right to
10016 extend an expiring rental agreement upon the same terms for a
10017 period that will expire no later than 180 days after the date of
10018 the written notice of intended conversion. If the rental
10019 agreement expires more than 180 days after the date of the
10020 notice, the tenant may not unilaterally extend the rental
10021 agreement.
10022 (2)(a) In order to extend the rental agreement as provided
10023 in subsection (1), a tenant shall, within 45 days after the date
10024 of the written notice of intended conversion, give written
10025 notice to the developer of the intention to extend the rental
10026 agreement.
10027 (b) If the rental agreement will expire within 45 days
10028 following the date of the notice, the tenant may remain in
10029 occupancy for the 45-day decision period upon the same terms by
10030 giving the developer written notice and paying rent on a pro
10031 rata basis from the expiration date of the rental agreement to
10032 the end of the 45-day period.
10033 (c) The tenant may extend the rental agreement for the full
10034 extension period or a part of the period.
10035 (3) After the date of a notice of intended conversion, a
10036 tenant may terminate any rental agreement, or any extension
10037 period having an unexpired term of 180 days or less, upon 30
10038 days’ written notice to the developer. However, unless the
10039 rental agreement was entered into, extended, or renewed after
10040 the effective date of this part, the tenant may not unilaterally
10041 terminate the rental agreement but may unilaterally terminate
10042 any extension period having an unexpired term of 180 days or
10043 less upon 30 days’ written notice.
10044 (4) A developer may elect to provide tenants who have been
10045 continuous residents of the existing improvements for at least
10046 180 days preceding the date of the written notice of intended
10047 conversion and whose rental agreements expire within 180 days of
10048 the date of the written notice of intended conversion the option
10049 of receiving in cash a tenant relocation payment at least equal
10050 to 1 month’s rent in consideration for extending the rental
10051 agreement for not more than 180 days, rather than extending the
10052 rental agreement for up to 270 days.
10053 (5) A rental agreement may provide for termination by the
10054 developer upon 60 days’ written notice if the rental agreement
10055 is entered into subsequent to the delivery of the written notice
10056 of intended conversion to all tenants and conspicuously states
10057 that the existing improvements are to be converted. No other
10058 provision in a rental agreement shall be enforceable to the
10059 extent that it purports to reduce the extension period provided
10060 by this section or otherwise would permit a developer to
10061 terminate a rental agreement in the event of a conversion. This
10062 subsection applies to rental agreements entered into, extended,
10063 or renewed after the effective date of this part; the
10064 termination provisions of all other rental agreements are
10065 governed by the provisions of s. 718.402(3), Florida Statutes
10066 1979.
10067 (6) Any provision of this section or of the rental
10068 agreement or other contract or agreement to the contrary
10069 notwithstanding, whenever a county, including a charter county,
10070 determines that there exists within the county a vacancy rate in
10071 rental housing of 3 percent or less, the county may adopt an
10072 ordinance or other measure extending the 270-day extension
10073 period described in paragraph (1)(a) and the 180-day extension
10074 described in paragraph (1)(b) for an additional 90 days, if:
10075 (a) Such measure was duly adopted, after notice and public
10076 hearing, in accordance with all applicable provisions of the
10077 charter governing the county and any other applicable laws; and
10078 (b) The governing body has made and recited in such measure
10079 its findings establishing the existence in fact of a housing
10080 emergency so grave as to constitute a serious menace to the
10081 general public and that such controls are necessary and proper
10082 to eliminate such grave housing emergency.
10083
10084 A county ordinance or other measure adopting an additional 90
10085 day extension under the provisions of this section is
10086 controlling throughout the entire county, including a charter
10087 county, where adopted, including all municipalities, unless a
10088 municipality votes not to have it apply within its boundaries.
10089 Section 107. Section 718.608, Florida Statutes, is amended
10090 to read:
10091 718.608 Notice of intended conversion; time of delivery;
10092 content.—
10093 (1) Prior to or simultaneous with the first offering of
10094 individual units to any person, each developer shall deliver a
10095 notice of intended conversion to all tenants of the existing
10096 improvements being converted to residential common interest
10097 community condominium. All such notices shall be given within a
10098 72-hour period.
10099 (2)(a) Each notice of intended conversion shall be dated
10100 and in writing. The notice shall contain the following
10101 statement, with the phrases of the following statement which
10102 appear in upper case printed in conspicuous type:
10103
10104 These apartments are being converted to common interest
10105 community condominium by ...(name of developer)..., the
10106 developer.
10107 1. YOU MAY REMAIN AS A RESIDENT UNTIL THE EXPIRATION OF
10108 YOUR RENTAL AGREEMENT. FURTHER, YOU MAY EXTEND YOUR RENTAL
10109 AGREEMENT AS FOLLOWS:
10110 a. If you have continuously been a resident of these
10111 apartments during the last 180 days and your rental agreement
10112 expires during the next 270 days, you may extend your rental
10113 agreement for up to 270 days after the date of this notice.
10114 b. If you have not been a continuous resident of these
10115 apartments for the last 180 days and your rental agreement
10116 expires during the next 180 days, you may extend your rental
10117 agreement for up to 180 days after the date of this notice.
10118 c. IN ORDER FOR YOU TO EXTEND YOUR RENTAL AGREEMENT, YOU
10119 MUST GIVE THE DEVELOPER WRITTEN NOTICE WITHIN 45 DAYS AFTER THE
10120 DATE OF THIS NOTICE.
10121 2. IF YOUR RENTAL AGREEMENT EXPIRES IN THE NEXT 45 DAYS,
10122 you may extend your rental agreement for up to 45 days after the
10123 date of this notice while you decide whether to extend your
10124 rental agreement as explained above. To do so, you must notify
10125 the developer in writing. You will then have the full 45 days to
10126 decide whether to extend your rental agreement as explained
10127 above.
10128 3. During the extension of your rental agreement you will
10129 be charged the same rent that you are now paying.
10130 4. YOU MAY CANCEL YOUR RENTAL AGREEMENT AND ANY EXTENSION
10131 OF THE RENTAL AGREEMENT AS FOLLOWS:
10132 a. If your rental agreement began or was extended or
10133 renewed after May 1, 1980, and your rental agreement, including
10134 extensions and renewals, has an unexpired term of 180 days or
10135 less, you may cancel your rental agreement upon 30 days’ written
10136 notice and move. Also, upon 30 days’ written notice, you may
10137 cancel any extension of the rental agreement.
10138 b. If your rental agreement was not begun or was not
10139 extended or renewed after May 1, 1980, you may not cancel the
10140 rental agreement without the consent of the developer. If your
10141 rental agreement, including extensions and renewals, has an
10142 unexpired term of 180 days or less, you may, however, upon 30
10143 days’ written notice cancel any extension of the rental
10144 agreement.
10145 5. All notices must be given in writing and sent by mail,
10146 return receipt requested, or delivered in person to the
10147 developer at this address: ...(name and address of
10148 developer)....
10149 6. If you have continuously been a resident of these
10150 apartments during the last 180 days:
10151 a. You have the right to purchase your apartment and will
10152 have 45 days to decide whether to purchase. If you do not buy
10153 the unit at that price and the unit is later offered at a lower
10154 price, you will have the opportunity to buy the unit at the
10155 lower price. However, in all events your right to purchase the
10156 unit ends when the rental agreement or any extension of the
10157 rental agreement ends or when you waive this right in writing.
10158 b. Within 90 days you will be provided purchase information
10159 relating to your apartment, including the price of your unit and
10160 the condition of the building. If you do not receive this
10161 information within 90 days, your rental agreement and any
10162 extension will be extended 1 day for each day over 90 days until
10163 you are given the purchase information. If you do not want this
10164 rental agreement extension, you must notify the developer in
10165 writing.
10166 7. If you have any questions regarding this conversion or
10167 the Common Interest Community Condominium Act, you may contact
10168 the developer or the state agency which regulates common
10169 interest communities condominiums: The Division of Common
10170 Interest Communities Florida Condominiums, Timeshares, and
10171 Mobile Homes, ...(Tallahassee address and telephone number of
10172 division)....
10173 (b) When a developer offers tenants an optional tenant
10174 relocation payment pursuant to s. 718.606(4), the notice of
10175 intended conversion shall contain a statement substantially as
10176 follows:
10177 If you have been a continuous resident of these apartments
10178 for the last 180 days and your lease expires during the next 180
10179 days, you may extend your rental agreement for up to 270 days,
10180 or you may extend your rental agreement for up to 180 days and
10181 receive a cash payment at least equal to 1 month’s rent. You
10182 must make your decision and inform the developer in writing
10183 within 45 days after the date of this notice.
10184 (c) When the rental agreement extension provisions of s.
10185 718.606(6) are applicable to a conversion, subparagraphs 1.a.
10186 and b. of the notice of intended conversion shall read as
10187 follows:
10188 1. YOU MAY REMAIN AS A RESIDENT UNTIL THE EXPIRATION OF
10189 YOUR RENTAL AGREEMENT. FURTHER, YOU MAY EXTEND YOUR RENTAL
10190 AGREEMENT AS FOLLOWS:
10191 a. If you have continuously been a resident of these
10192 apartments during the last 180 days and your rental agreement
10193 expires during the next 360 days, you may extend your rental
10194 agreement for up to 360 days after the date of this notice.
10195 b. If you have not been a continuous resident of these
10196 apartments for the last 180 days and your rental agreement
10197 expires during the next 270 days, you may extend your rental
10198 agreement for up to 270 days after the date of this notice.
10199 (3) Notice of intended conversion may not be waived by a
10200 tenant unless the tenant’s lease conspicuously states that the
10201 building is to be converted and the other tenants residing in
10202 the building have previously received a notice of intended
10203 conversion.
10204 (4) Upon the request of a developer and payment of a fee
10205 prescribed by the rules of the division, not to exceed $50, the
10206 division may verify to a developer that a notice complies with
10207 this section.
10208 (5) Prior to delivering a notice of intended conversion to
10209 tenants of existing improvements being converted to a
10210 residential common interest community condominium, each
10211 developer shall file with the division and receive approval of a
10212 copy of the notice of intended conversion. Upon filing, each
10213 developer shall pay to the division a filing fee of $100.
10214 Section 108. Section 718.616, Florida Statutes, is amended
10215 to read:
10216 718.616 Disclosure of condition of building and estimated
10217 replacement costs and notification of municipalities.—
10218 (1) Each developer of a residential common interest
10219 community condominium created by converting existing, previously
10220 occupied improvements to such form of ownership shall prepare a
10221 report that discloses the condition of the improvements and the
10222 condition of certain components and their current estimated
10223 replacement costs as of the date of the report.
10224 (2) The following information shall be stated concerning
10225 the improvements:
10226 (a) The date and type of construction.
10227 (b) The prior use.
10228 (c) Whether there is termite damage or infestation and
10229 whether the termite damage or infestation, if any, has been
10230 properly treated. The statement shall be substantiated by
10231 including, as an exhibit, an inspection report by a certified
10232 pest control operator.
10233 (3)(a) Disclosure of condition shall be made for each of
10234 the following components that the existing improvements may
10235 include:
10236 1. Roof.
10237 2. Structure.
10238 3. Fire protection systems.
10239 4. Elevators.
10240 5. Heating and cooling systems.
10241 6. Plumbing.
10242 7. Electrical systems.
10243 8. Swimming pool.
10244 9. Seawalls, pilings, and docks.
10245 10. Pavement and concrete, including roadways, walkways,
10246 and parking areas.
10247 11. Drainage systems.
10248 12. Irrigation systems.
10249 (b) For each component, the following information shall be
10250 disclosed and substantiated by attaching a copy of a certificate
10251 under seal of an architect or engineer authorized to practice in
10252 this state:
10253 1. The age of the component as of the date of the report.
10254 2. The estimated remaining useful life of the component as
10255 of the date of the report.
10256 3. The estimated current replacement cost of the component
10257 as of the date of the report, expressed:
10258 a. As a total amount; and
10259 b. As a per-unit amount, based upon each unit’s
10260 proportional share of the common expenses.
10261 4. The structural and functional soundness of the
10262 component.
10263 (c) Each unit owner and the association are third-party
10264 beneficiaries of the report.
10265 (d) A supplemental report shall be prepared for any
10266 structure or component that is renovated or repaired after
10267 completion of the original report and prior to the recording of
10268 the documents declaration of the common interest community
10269 condominium. If the documents are declaration is not recorded
10270 within 1 year after the date of the original report, the
10271 developer shall update the report annually prior to recording
10272 the documents declaration of the common interest community
10273 condominium.
10274 (e) The report may not contain representations on behalf of
10275 the development concerning future improvements or repairs and
10276 must be limited to the current condition of the improvements.
10277 (4) If the proposed common interest community condominium
10278 is situated within a municipality, the disclosure shall include
10279 a letter from the municipality acknowledging that the
10280 municipality has been notified of the proposed creation of a
10281 residential common interest community condominium by conversion
10282 of existing, previously occupied improvements and, in any
10283 county, as defined in s. 125.011(1), acknowledging compliance
10284 with applicable zoning requirements as determined by the
10285 municipality.
10286 Section 109. Section 718.618, Florida Statutes, is amended
10287 to read:
10288 718.618 Converter reserve accounts; warranties.—
10289 (1) When existing improvements are converted to ownership
10290 as a residential common interest community condominium, the
10291 developer shall establish converter reserve accounts for capital
10292 expenditures and deferred maintenance, or give warranties as
10293 provided by subsection (6), or post a surety bond as provided by
10294 subsection (7). The developer shall fund the converter reserve
10295 accounts in amounts calculated as follows:
10296 (a)1. When the existing improvements include an air
10297 conditioning system serving more than one unit or property which
10298 the association is responsible to repair, maintain, or replace,
10299 the developer shall fund an air-conditioning reserve account.
10300 The amount of the reserve account shall be the product of the
10301 estimated current replacement cost of the system, as disclosed
10302 and substantiated pursuant to s. 718.616(3)(b), multiplied by a
10303 fraction, the numerator of which shall be the lesser of the age
10304 of the system in years or 9, and the denominator of which shall
10305 be 10. When such air-conditioning system is within 1,000 yards
10306 of the seacoast, the numerator shall be the lesser of the age of
10307 the system in years or 3, and the denominator shall be 4.
10308 2. The developer shall fund a plumbing reserve account. The
10309 amount of the funding shall be the product of the estimated
10310 current replacement cost of the plumbing component, as disclosed
10311 and substantiated pursuant to s. 718.616(3)(b), multiplied by a
10312 fraction, the numerator of which shall be the lesser of the age
10313 of the plumbing in years or 36, and the denominator of which
10314 shall be 40.
10315 3. The developer shall fund a roof reserve account. The
10316 amount of the funding shall be the product of the estimated
10317 current replacement cost of the roofing component, as disclosed
10318 and substantiated pursuant to s. 718.616(3)(b), multiplied by a
10319 fraction, the numerator of which shall be the lesser of the age
10320 of the roof in years or the numerator listed in the following
10321 table. The denominator of the fraction shall be determined based
10322 on the roof type, as follows:
10323
10324 Roof Type Numerator Denominator
10325 a. Built-up roof without insulation 4 5
10326 b. Built-up roof with insulation 4 5
10327 c. Cement tile roof 25 45 30 50
10328 d. Asphalt shingle roof 14 15
10329 e. Copper roof 30 35
10330 f. Wood shingle roof 9 10
10331 g. All other types 18 20
10332 (b) The age of any component or structure for which the
10333 developer is required to fund a reserve account shall be
10334 measured in years, rounded to the nearest whole year. The amount
10335 of converter reserves to be funded by the developer for each
10336 structure or component shall be based on the age of the
10337 structure or component as disclosed in the inspection report.
10338 The architect or engineer shall determine the age of the
10339 component from the later of:
10340 1. The date when the component or structure was replaced or
10341 substantially renewed, if the replacement or renewal of the
10342 component at least met the requirements of the then-applicable
10343 building code; or
10344 2. The date when the installation or construction of the
10345 existing component or structure was completed.
10346 (c) When the age of a component or structure is to be
10347 measured from the date of replacement or renewal, the developer
10348 shall provide the division with a certificate, under the seal of
10349 an architect or engineer authorized to practice in this state,
10350 verifying:
10351 1. The date of the replacement or renewal; and
10352 2. That the replacement or renewal at least met the
10353 requirements of the then-applicable building code.
10354 (d) In addition to establishing the reserve accounts
10355 specified above, the developer shall establish those other
10356 reserve accounts required by s. 718.112(g) 718.112(2)(f), and
10357 shall fund those accounts in accordance with the formula
10358 provided therein. The vote to waive or reduce the funding or
10359 reserves required by s. 718.112(g) 718.112(2)(f) does not affect
10360 or negate the obligations arising under this section.
10361 (2)(a) The developer shall fund the reserve account
10362 required by subsection (1), on a pro rata basis upon the sale of
10363 each unit. The developer shall deposit in the reserve account
10364 not less than a percentage of the total amount to be deposited
10365 in the reserve account equal to the percentage of ownership of
10366 the common elements allocable to the unit sold. When a developer
10367 deposits amounts in excess of the minimum reserve account
10368 funding, later deposits may be reduced to the extent of the
10369 excess funding. For the purposes of this subsection, a unit is
10370 considered sold when a fee interest in the unit is transferred
10371 to a third party or the unit is leased for a period in excess of
10372 5 years.
10373 (b) When an association makes an expenditure of converter
10374 reserve account funds before the developer has sold all units,
10375 the developer shall make a deposit in the reserve account. Such
10376 deposit shall be at least equal to that portion of the
10377 expenditure which would be charged against the reserve account
10378 deposit that would have been made for any such unit had the unit
10379 been sold. Such deposit may be reduced to the extent the
10380 developer has funded the reserve account in excess of the
10381 minimum reserve account funding required by this subsection.
10382 This paragraph applies only when the developer has funded
10383 reserve accounts as provided by paragraph (a).
10384 (3) The use of reserve account funds, as provided in this
10385 section, is limited as follows:
10386 (a) Reserve account funds may be spent prior to the
10387 assumption of control of the association by unit owners other
10388 than the developer; and
10389 (b) Reserve account funds may be expended only for repair
10390 or replacement of the specific components for which the funds
10391 were deposited, unless, after assumption of control of the
10392 association by unit owners other than the developer, it is
10393 determined by three-fourths of the voting interests in the
10394 common interest community condominium to expend the funds for
10395 other purposes.
10396 (4) The developer shall establish the reserve account, as
10397 provided in this section, in the name of the association at a
10398 bank, savings and loan association, or trust company located in
10399 this state.
10400 (5) A developer may establish and fund additional converter
10401 reserve accounts. The amount of funding shall be the product of
10402 the estimated current replacement cost of a component, as
10403 disclosed and substantiated pursuant to s. 718.616(3)(b),
10404 multiplied by a fraction, the numerator of which is the age of
10405 the component in years and the denominator of which is the total
10406 estimated life of the component in years.
10407 (6) A developer makes no implied warranties when existing
10408 improvements are converted to ownership as a residential common
10409 interest community condominium and reserve accounts are funded
10410 in accordance with this section. As an alternative to
10411 establishing such reserve accounts, or when a developer fails to
10412 establish the reserve accounts in accordance with this section,
10413 the developer shall be deemed to have granted to the purchaser
10414 of each unit an implied warranty of fitness and merchantability
10415 for the purposes or uses intended. The warranty shall be for a
10416 period beginning with the notice of intended conversion and
10417 continuing for 3 years thereafter, or the recording of the
10418 documents declaration to common interest community condominium
10419 and continuing for 3 years thereafter, or 1 year after owners
10420 other than the developer obtain control of the association,
10421 whichever occurs last, but in no event more than 5 years.
10422 (a) The warranty provided for in this section is
10423 conditioned upon routine maintenance being performed, unless the
10424 maintenance is an obligation of the developer or a developer
10425 controlled association.
10426 (b) The warranty shall inure to the benefit of each owner
10427 and successor owner.
10428 (c) Existing improvements converted to residential common
10429 interest community condominium may be covered by an insured
10430 warranty program underwritten by an insurance company authorized
10431 to do business in this state, if such warranty program meets the
10432 minimum requirements of this chapter. To the degree that the
10433 warranty program does not meet the minimum requirements of this
10434 chapter, such requirements shall apply.
10435 (7) When a developer desires to post a surety bond, the
10436 developer shall, after notification to the buyer, acquire a
10437 surety bond issued by a company licensed to do business in this
10438 state, if such a bond is readily available in the open market,
10439 in an amount which would be equal to the total amount of all
10440 reserve accounts required under subsection (1), payable to the
10441 association.
10442 (8) The amended provisions of this section do not affect a
10443 conversion of existing improvements when a developer has filed a
10444 notice of intended conversion and the documents required by s.
10445 718.503 or s. 718.504, as applicable, with the division prior to
10446 the effective date of this law, provided:
10447 (a) The documents are proper for filing purposes.
10448 (b) The developer, not later than 6 months after such
10449 filing:
10450 1. Records a declaration for such filing in accordance with
10451 part I.
10452 2. Gives a notice of intended conversion.
10453 (9) This section applies only to the conversion of existing
10454 improvements where construction of the improvement was commenced
10455 prior to its designation by the developer as a common interest
10456 community condominium. In such circumstances, s. 718.203 does
10457 not apply.
10458 (10) A developer who sells a common interest community
10459 condominium parcel that is subject to this part shall disclose
10460 in conspicuous type in the contract of sale whether the
10461 developer has established converter reserve accounts, provided a
10462 warranty of fitness and merchantability, or posted a surety bond
10463 for purposes of complying with this section.
10464 Section 110. Section 718.62, Florida Statutes, is amended
10465 to read:
10466 718.62 Prohibition of discrimination against nonpurchasing
10467 tenants.—When existing improvements are converted to common
10468 interest community condominium, tenants who have not purchased a
10469 unit in the common interest community condominium being created
10470 shall, during the remaining term of the rental agreement and any
10471 extension thereof, be entitled to the same rights, privileges,
10472 and services that were enjoyed by all tenants prior to the date
10473 of the written notice of conversion and that are granted,
10474 offered, or provided to purchasers.
10475 Section 111. Section 718.621, Florida Statutes, is amended
10476 to read:
10477 718.621 Rulemaking authority.—The division is authorized to
10478 adopt rules pursuant to the Administrative Procedure Act to
10479 administer and ensure compliance with developers’ obligations
10480 with respect to common interest community condominium
10481 conversions concerning the filing and noticing of intended
10482 conversion, rental agreement extensions, rights of first
10483 refusal, and disclosure and postpurchase protections.
10484 Section 112. Part VII of chapter 718, Florida Statutes,
10485 consisting of ss. 718.701, 718.702, 718.703, 718.704, 718.705,
10486 718.706, 718.707, and 718.708, Florida Statutes, is repealed.
10487 Section 113. Sections 719.101, 719.102, 719.103, 719.1035,
10488 719.104, 719.105, 719.1055, 719.106, 719.1064, 719.1065,
10489 719.107, 719.108, 719.109, 719.110, 719.111, 719.112, 719.1124,
10490 719.115, 719.1255, 719.127, 719.128, 719.129, 719.202, 719.203,
10491 719.301, 719.302, 719.3026, 719.303, 719.304, 719.401, 719.4015,
10492 719.402, 719.403, 719.501, 719.502, 719.503, 719.504, 719.505,
10493 719.506, 719.507, 719.508, 719.604, 719.606, 719.608, 719.61,
10494 719.612, 719.614, 719.616, 719.618, 719.62, 719.621, and
10495 719.622, Florida Statutes, are repealed.
10496 Section 114. Chapter 720, Florida Statutes, consisting of
10497 ss. 720.301, 720.3015, 720.302, 720.303, 720.3033, 720.3035,
10498 720.304, 720.305, 720.3053, 720.3055, 720.306, 720.307,
10499 720.3075, 720.308, 720.3085, 720.30851, 720.3086, 720.309,
10500 720.31, 720.311, 720.312, 720.313, 720.315, 720.316, 720.317,
10501 720.401, 720.402, 720.403, 720.404, 720.405, 720.406, and
10502 720.407, Florida Statutes, is repealed.
10503 Section 115. Subsections (2) and (3) of section 721.03,
10504 Florida Statutes, are amended to read:
10505 721.03 Scope of chapter.—
10506 (2) When a timeshare plan is subject to both the provisions
10507 of this chapter and the provisions of chapter 718 or chapter
10508 719, the plan shall meet the requirements of both chapters
10509 unless exempted as provided in this section. The division shall
10510 have the authority to adopt rules differentiating between
10511 timeshare condominiums and nontimeshare condominiums, and
10512 between timeshare cooperatives and nontimeshare cooperatives, in
10513 the interpretation and implementation of chapter chapters 718
10514 and 719, respectively. In the event of a conflict between the
10515 provisions of this chapter and the provisions of chapter 718 or
10516 chapter 719, the provisions of this chapter shall prevail.
10517 (3) A timeshare plan that which is subject to the
10518 provisions of chapter 718 or chapter 719, if fully in compliance
10519 with the provisions of this chapter, is exempt from the
10520 following:
10521 (a) Section Sections 718.202 and 719.202, relating to sales
10522 or reservation deposits prior to closing.
10523 (b) Section Sections 718.502 and 719.502, relating to
10524 filing prior to sale or lease.
10525 (c) Section Sections 718.503 and 719.503, relating to
10526 disclosure prior to sale.
10527 (d) Section Sections 718.504 and 719.504, relating to
10528 prospectus or offering circular.
10529 (e) Part VI of chapter 718 and part VI of chapter 719,
10530 relating to conversion of existing improvements to the
10531 condominium or cooperative form of ownership, respectively,
10532 provided that a developer converting existing improvements to a
10533 timeshare condominium or timeshare cooperative must comply with
10534 ss. 718.606, 718.608, 718.61, and 718.62, or ss. 719.606,
10535 719.608, 719.61, and 719.62, if applicable, and, if the existing
10536 improvements received a certificate of occupancy more than 18
10537 months before such conversion, one of the following:
10538 1. The accommodations and facilities shall be renovated and
10539 improved to a condition such that the remaining useful life in
10540 years of the roof, plumbing, air-conditioning, and any component
10541 of the structure which has a useful life less than the useful
10542 life of the overall structure is equal to the useful life of
10543 accommodations or facilities that would exist if such
10544 accommodations and facilities were newly constructed and not
10545 previously occupied.
10546 2. The developer shall fund reserve accounts for capital
10547 expenditures and deferred maintenance for the roof, plumbing,
10548 air-conditioning, and any component of the structure the useful
10549 life of which is less than the useful life of the overall
10550 structure. The reserve accounts shall be funded for each
10551 component in an amount equal to the product of the estimated
10552 current replacement cost of such component as of the date of
10553 such conversion (as disclosed and substantiated by a certificate
10554 under the seal of an architect or engineer authorized to
10555 practice in this state) multiplied by a fraction, the numerator
10556 of which shall be the age of the component in years (as
10557 disclosed and substantiated by a certificate under the seal of
10558 an architect or engineer authorized to practice in this state)
10559 and the denominator of which shall be the total useful life of
10560 the component in years (as disclosed and substantiated by a
10561 certificate under the seal of an architect or engineer
10562 authorized to practice in this state). Alternatively, the
10563 reserve accounts may be funded for each component in an amount
10564 equal to the amount that, except for the application of this
10565 subsection, would be required to be maintained pursuant to s.
10566 718.618(1) or s. 719.618(1). The developer shall fund the
10567 reserve accounts contemplated in this subparagraph out of the
10568 proceeds of each sale of a timeshare interest, on a pro rata
10569 basis, in an amount not less than a percentage of the total
10570 amount to be deposited in the reserve account equal to the
10571 percentage of ownership allocable to the timeshare interest
10572 sold. When an owners’ association makes an expenditure of
10573 reserve account funds before the developer has initially sold
10574 all timeshare interests, the developer shall make a deposit in
10575 the reserve account if the reserve account is insufficient to
10576 pay the expenditure. Such deposit shall be at least equal to
10577 that portion of the expenditure which would be charged against
10578 the reserve account deposit that would have been made for any
10579 such timeshare interest had the timeshare interest been
10580 initially sold. When a developer deposits amounts in excess of
10581 the minimum reserve account funding, later deposits may be
10582 reduced to the extent of the excess funding.
10583 3. The developer shall provide each purchaser with a
10584 warranty of fitness and merchantability pursuant to s.
10585 718.618(6) or s. 719.618(6).
10586 Section 116. Subsections (11), (34), and (40) of section
10587 721.05, Florida Statutes, are amended to read:
10588 721.05 Definitions.—As used in this chapter, the term:
10589 (11) “Division” means the Division of Common Interest
10590 Communities Florida Condominiums, Timeshares, and Mobile Homes
10591 of the Department of Business and Professional Regulation.
10592 (34) “Timeshare estate” means a right to occupy a timeshare
10593 unit, coupled with a freehold estate or an estate for years with
10594 a future interest in a timeshare property or a specified portion
10595 thereof, or coupled with an ownership interest in a common
10596 interest community condominium unit pursuant to s. 718.103, an
10597 ownership interest in a cooperative unit pursuant to s. 719.103,
10598 or a direct or indirect beneficial interest in a trust that
10599 complies in all respects with s. 721.08(2)(c)4. or s.
10600 721.53(1)(e), provided that the trust does not contain any
10601 personal property timeshare interests. A timeshare estate is a
10602 parcel of real property under the laws of this state.
10603 (40) “Timeshare property” means one or more timeshare units
10604 subject to the same timeshare instrument, together with any
10605 other property or rights to property appurtenant to those
10606 timeshare units. Notwithstanding anything to the contrary
10607 contained in chapter 718 or chapter 719, the timeshare
10608 instrument for a timeshare common interest community condominium
10609 or cooperative may designate personal property, contractual
10610 rights, affiliation agreements of component sites of vacation
10611 clubs, exchange companies, or reservation systems, or any other
10612 agreements or personal property, as common elements or limited
10613 common elements of the timeshare common interest community
10614 condominium or cooperative.
10615 Section 117. Paragraph (d) of subsection (2) and paragraph
10616 (q) of subsection (5) of section 721.07, Florida Statutes, are
10617 amended to read:
10618 721.07 Public offering statement.—Prior to offering any
10619 timeshare plan, the developer must submit a filed public
10620 offering statement to the division for approval as prescribed by
10621 s. 721.03, s. 721.55, or this section. Until the division
10622 approves such filing, any contract regarding the sale of that
10623 timeshare plan is subject to cancellation by the purchaser
10624 pursuant to s. 721.10.
10625 (2)
10626 (d) A developer shall have the authority to deliver to
10627 purchasers any purchaser public offering statement that is not
10628 yet approved by the division, provided that the following shall
10629 apply:
10630 1. At the time the developer delivers an unapproved
10631 purchaser public offering statement to a purchaser pursuant to
10632 this paragraph, the developer shall deliver a fully completed
10633 and executed copy of the purchase contract required by s. 721.06
10634 that contains the following statement in conspicuous type in
10635 substantially the following form which shall replace the
10636 statements required by s. 721.06(1)(g):
10637
10638 The developer is delivering to you a public offering statement
10639 that has been filed with but not yet approved by the Division of
10640 Common Interest Communities Florida Condominiums, Timeshares,
10641 and Mobile Homes. Any revisions to the unapproved public
10642 offering statement you have received must be delivered to you,
10643 but only if the revisions materially alter or modify the
10644 offering in a manner adverse to you. After the division approves
10645 the public offering statement, you will receive notice of the
10646 approval from the developer and the required revisions, if any.
10647
10648 Your statutory right to cancel this transaction without any
10649 penalty or obligation expires 10 calendar days after the date
10650 you signed your purchase contract or the date on which you
10651 receive the last of all documents required to be given to you
10652 pursuant to section 721.07(6), Florida Statutes, or 10 calendar
10653 days after you receive revisions required to be delivered to
10654 you, if any, whichever is later. If you decide to cancel this
10655 contract, you must notify the seller in writing of your intent
10656 to cancel. Your notice of cancellation shall be effective upon
10657 the date sent and shall be sent to ...(Name of Seller)... at
10658 ...(Address of Seller).... Any attempt to obtain a waiver of
10659 your cancellation right is void and of no effect. While you may
10660 execute all closing documents in advance, the closing, as
10661 evidenced by delivery of the deed or other document, before
10662 expiration of your 10-day cancellation period, is prohibited.
10663
10664 2. After receipt of approval from the division and prior to
10665 closing, if any revisions made to the documents contained in the
10666 purchaser public offering statement materially alter or modify
10667 the offering in a manner adverse to a purchaser, the developer
10668 shall send the purchaser such revisions, together with a notice
10669 containing a statement in conspicuous type in substantially the
10670 following form:
10671
10672 The unapproved public offering statement previously delivered to
10673 you, together with the enclosed revisions, has been approved by
10674 the Division of Common Interest Communities Florida
10675 Condominiums, Timeshares, and Mobile Homes. Accordingly, your
10676 cancellation right expires 10 calendar days after you sign your
10677 purchase contract or 10 calendar days after you receive these
10678 revisions, whichever is later. If you have any questions
10679 regarding your cancellation rights, you may contact the division
10680 at [insert division’s current address].
10681
10682 3. After receipt of approval from the division and prior to
10683 closing, if no revisions have been made to the documents
10684 contained in the unapproved purchaser public offering statement,
10685 or if such revisions do not materially alter or modify the
10686 offering in a manner adverse to a purchaser, the developer shall
10687 send the purchaser a notice containing a statement in
10688 conspicuous type in substantially the following form:
10689
10690 The unapproved public offering statement previously delivered to
10691 you has been approved by the Division of Common Interest
10692 Communities Florida Condominiums, Timeshares, and Mobile Homes.
10693 Revisions made to the unapproved public offering statement, if
10694 any, are not required to be delivered to you or are not deemed
10695 by the developer, in its opinion, to materially alter or modify
10696 the offering in a manner that is adverse to you. Accordingly,
10697 your cancellation right expired 10 days after you signed your
10698 purchase contract. A complete copy of the approved public
10699 offering statement is available through the managing entity for
10700 inspection as part of the books and records of the plan. If you
10701 have any questions regarding your cancellation rights, you may
10702 contact the division at [insert division’s current address].
10703 (5) Every filed public offering statement for a timeshare
10704 plan which is not a multisite timeshare plan shall contain the
10705 information required by this subsection. The division is
10706 authorized to provide by rule the method by which a developer
10707 must provide such information to the division.
10708 (q) If the timeshare plan is part of a phase project, a
10709 statement to that effect and a complete description of the
10710 phasing. Notwithstanding any provisions of s. 718.110 or s.
10711 719.1055, a developer may develop a timeshare condominium or a
10712 timeshare cooperative in phases if the original declaration of
10713 condominium or cooperative documents submitting the initial
10714 phase to condominium ownership or cooperative ownership or an
10715 amendment to the declaration of condominium or cooperative
10716 documents which has been approved by all of the unit owners and
10717 unit mortgagees provides for phasing. Notwithstanding any
10718 provisions of s. 718.403 or s. 719.403 to the contrary, the
10719 original declaration of condominium or cooperative documents, or
10720 an amendment to the declaration of condominium or cooperative
10721 documents adopted pursuant to this subsection, need only
10722 generally describe the developer’s phasing plan and the land
10723 which may become part of the condominium or cooperative, and, in
10724 conjunction therewith, the developer may also reserve all rights
10725 to vary his or her phasing plan as to phase boundaries, plot
10726 plans and floor plans, timeshare unit types, timeshare unit
10727 sizes and timeshare unit type mixes, numbers of timeshare units,
10728 and facilities with respect to each subsequent phase. There
10729 shall be no time limit during which a developer of a timeshare
10730 condominium or timeshare cooperative must complete his or her
10731 phasing plan, and the developer shall not be required to notify
10732 owners of existing timeshare estates of his or her decision not
10733 to add one or more proposed phases.
10734 Section 118. Paragraph (b) of subsection (5) and subsection
10735 (8) of section 721.08, Florida Statutes, are amended to read:
10736 721.08 Escrow accounts; nondisturbance instruments;
10737 alternate security arrangements; transfer of legal title.—
10738 (5)
10739 (b) Notwithstanding anything in chapter 718 or chapter 719
10740 to the contrary, the director of the division shall have the
10741 discretion to accept other assurances pursuant to paragraph (a)
10742 in lieu of any requirement that completion of construction of
10743 one or more accommodations or facilities of a timeshare plan be
10744 accomplished prior to closing.
10745 (8) An escrow agent holding escrowed funds pursuant to this
10746 chapter that have not been claimed for a period of 5 years after
10747 the date of deposit shall make at least one reasonable attempt
10748 to deliver such unclaimed funds to the purchaser who submitted
10749 such funds to escrow. In making such attempt, an escrow agent is
10750 entitled to rely on a purchaser’s last known address as set
10751 forth in the books and records of the escrow agent and is not
10752 required to conduct any further search for the purchaser. If an
10753 escrow agent’s attempt to deliver unclaimed funds to any
10754 purchaser is unsuccessful, the escrow agent may deliver such
10755 unclaimed funds to the division and the division shall deposit
10756 such unclaimed funds in the Division of Common Interest
10757 Communities Florida Condominiums, Timeshares, and Mobile Homes
10758 Trust Fund, 30 days after giving notice in a publication of
10759 general circulation in the county in which the timeshare
10760 property containing the purchaser’s timeshare interest is
10761 located. The purchaser may claim the same at any time prior to
10762 the delivery of such funds to the division. After delivery of
10763 such funds to the division, the purchaser shall have no more
10764 rights to the unclaimed funds. The escrow agent shall not be
10765 liable for any claims from any party arising out of the escrow
10766 agent’s delivery of the unclaimed funds to the division pursuant
10767 to this section.
10768 Section 119. Paragraph (b) of subsection (1), paragraphs
10769 (c), (d), (e), and (j) of subsection (3), paragraph (a) of
10770 subsection (6), and subsections (7) and (8) of section 721.13,
10771 Florida Statutes, are amended to read:
10772 721.13 Management.—
10773 (1)
10774 (b)1. With respect to a timeshare plan which is also
10775 regulated under chapter 718 or chapter 719, or which contains a
10776 mandatory owners’ association, the board of administration of
10777 the owners’ association shall be considered the managing entity
10778 of the timeshare plan.
10779 2. During any period of time in which such owners’
10780 association has entered into a contract with a manager or
10781 management firm to provide some or all of the management
10782 services to the timeshare plan, both the board of administration
10783 and the manager or management firm shall be considered the
10784 managing entity of the timeshare plan and shall be jointly and
10785 severally responsible for the faithful discharge of the duties
10786 of the managing entity.
10787 3. An owners’ association which is the managing entity of a
10788 timeshare plan that includes condominium units or cooperative
10789 units shall not be considered a condominium association pursuant
10790 to the provisions of chapter 718 or a cooperative association
10791 pursuant to the provisions of chapter 719, unless such owners’
10792 association also operates the entire condominium pursuant to s.
10793 718.111 or the entire cooperative pursuant to s. 719.104.
10794 (3) The duties of the managing entity include, but are not
10795 limited to:
10796 (c)1. Providing each year to all purchasers an itemized
10797 annual budget which shall include all estimated revenues and
10798 expenses. The budget shall be in the form required by s.
10799 721.07(5)(t). The budget shall be the final budget adopted by
10800 the managing entity for the current fiscal year. The final
10801 adopted budget is not required to be delivered if the managing
10802 entity has previously delivered a proposed annual budget for the
10803 current fiscal year to purchasers in accordance with chapter 718
10804 or chapter 719 and the managing entity includes a description of
10805 any changes in the adopted budget with the assessment notice and
10806 a disclosure regarding the purchasers’ right to receive a copy
10807 of the adopted budget, if desired. The budget shall contain, as
10808 a footnote or otherwise, any related party transaction
10809 disclosures or notes which appear in the audited financial
10810 statements of the managing entity for the previous budget year
10811 as required by paragraph (e). A copy of the final budget shall
10812 be filed with the division for review within 30 days after the
10813 beginning of each fiscal year, together with a statement of the
10814 number of periods of 7-day annual use availability that exist
10815 within the timeshare plan, including those periods filed for
10816 sale by the developer but not yet committed to the timeshare
10817 plan, for which annual fees are required to be paid to the
10818 division under s. 721.27.
10819 2. Notwithstanding anything contained in chapter 718 or
10820 chapter 719 to the contrary, the board of administration of an
10821 owners’ association which serves as the managing entity may from
10822 time to time reallocate reserves for deferred maintenance and
10823 capital expenditures required by s. 721.07(5)(t)3.a.(XI) from
10824 any deferred maintenance or capital expenditure reserve account
10825 to any other deferred maintenance or capital expenditure reserve
10826 account or accounts in its discretion without the consent of
10827 purchasers of the timeshare plan. Funds in any deferred
10828 maintenance or capital expenditure reserve account may not be
10829 transferred to any operating account without the consent of a
10830 majority of the purchasers of the timeshare plan. The managing
10831 entity may from time to time transfer excess funds in any
10832 operating account to any deferred maintenance or capital
10833 expenditure reserve account without the vote or approval of
10834 purchasers of the timeshare plan. In the event any amount of
10835 reserves for accommodations and facilities of a timeshare plan
10836 containing timeshare licenses or personal property timeshare
10837 interests exists at the end of the term of the timeshare plan,
10838 such reserves shall be refunded to purchasers on a pro rata
10839 basis.
10840 3. With respect to any timeshare plan that has a managing
10841 entity that is an owners’ association, reserves may be waived or
10842 reduced by a majority vote of those voting interests that are
10843 present, in person or by proxy, at a duly called meeting of the
10844 owners’ association. If a meeting of the purchasers has been
10845 called to determine whether to waive or reduce the funding of
10846 reserves and no such result is achieved or a quorum is not
10847 attained, the reserves as included in the budget shall go into
10848 effect.
10849 (d)1. Maintenance of all books and records concerning the
10850 timeshare plan so that all such books and records are reasonably
10851 available for inspection by any purchaser or the authorized
10852 agent of such purchaser. For purposes of this subparagraph, the
10853 books and records of the timeshare plan shall be considered
10854 “reasonably available” if copies of the requested portions are
10855 delivered to the purchaser or the purchaser’s agent within 7
10856 days after the date the managing entity receives a written
10857 request for the records signed by the purchaser. The managing
10858 entity may charge the purchaser a reasonable fee for copying the
10859 requested information not to exceed 25 cents per page. However,
10860 any purchaser or agent of such purchaser shall be permitted to
10861 personally inspect and examine the books and records wherever
10862 located at any reasonable time, under reasonable conditions, and
10863 under the supervision of the custodian of those records. The
10864 custodian shall supply copies of the records where requested and
10865 upon payment of the copying fee. No fees other than those set
10866 forth in this section may be charged for the providing of,
10867 inspection, or examination of books and records. All books and
10868 financial records of the timeshare plan must be maintained in
10869 accordance with generally accepted accounting practices.
10870 2. If the books and records of the timeshare plan are not
10871 maintained on the premises of the accommodations and facilities
10872 of the timeshare plan, the managing entity shall inform the
10873 division in writing of the location of the books and records and
10874 the name and address of the person who acts as custodian of the
10875 books and records at that location. In the event that the
10876 location of the books and records changes, the managing entity
10877 shall notify the division of the change in location and the name
10878 and address of the new custodian within 30 days after the date
10879 the books and records are moved. The purchasers shall be
10880 notified of the location of the books and records and the name
10881 and address of the custodian in the copy of the annual budget
10882 provided to them pursuant to paragraph (c).
10883 3. The division is authorized to adopt rules which specify
10884 those items and matters that shall be included in the books and
10885 records of the timeshare plan and which specify procedures to be
10886 followed in requesting and delivering copies of the books and
10887 records.
10888 4. Notwithstanding any provision of chapter 718 or chapter
10889 719 to the contrary, the managing entity may not furnish the
10890 name, address, or electronic mail address of any purchaser to
10891 any other purchaser or authorized agent thereof unless the
10892 purchaser whose name, address, or electronic mail address is
10893 requested first approves the disclosure in writing.
10894 (e) Arranging for an annual audit of the financial
10895 statements of the timeshare plan by a certified public
10896 accountant licensed by the Board of Accountancy of the
10897 Department of Business and Professional Regulation, in
10898 accordance with generally accepted auditing standards as defined
10899 by the rules of the Board of Accountancy of the Department of
10900 Business and Professional Regulation. The financial statements
10901 required by this section must be prepared on an accrual basis
10902 using fund accounting, and must be presented in accordance with
10903 generally accepted accounting principles. A copy of the audited
10904 financial statements must be filed with the division for review
10905 and forwarded to the board of directors and officers of the
10906 owners’ association, if one exists, no later than 5 calendar
10907 months after the end of the timeshare plan’s fiscal year. If no
10908 owners’ association exists, each purchaser must be notified, no
10909 later than 5 months after the end of the timeshare plan’s fiscal
10910 year, that a copy of the audited financial statements is
10911 available upon request to the managing entity. Notwithstanding
10912 any requirement of s. 718.111(13) or s. 719.104(4), the audited
10913 financial statements required by this section are the only
10914 annual financial reporting requirements for timeshare common
10915 interest communities condominiums or timeshare cooperatives.
10916 (j) Notwithstanding anything contained in chapter 718 or
10917 chapter 719 to the contrary, purchasers shall not have the power
10918 to cancel contracts entered into by the managing entity relating
10919 to a master or community antenna television system, a franchised
10920 cable television service, or any similar paid television
10921 programming service or bulk rate services agreement.
10922 (6)(a) The managing entity of any timeshare plan located in
10923 this state, including, but not limited to, those plans created
10924 with respect to a condominium pursuant to chapter 718 or a
10925 cooperative pursuant to chapter 719, may deny the use of the
10926 accommodations and facilities of the timeshare plan, including
10927 the denial of the right to make a reservation or the
10928 cancellation of a confirmed reservation for timeshare periods in
10929 a floating reservation timeshare plan, to any purchaser who is
10930 delinquent in the payment of any assessments made by the
10931 managing entity against such purchaser for common expenses or
10932 for ad valorem real estate taxes pursuant to this chapter or
10933 pursuant to s. 192.037. Such denial of use shall also extend to
10934 those parties claiming under the delinquent purchaser described
10935 in paragraphs (b) and (c). For purposes of this subsection, a
10936 purchaser shall be considered delinquent in the payment of a
10937 given assessment only upon the expiration of 60 days after the
10938 date the assessment is billed to the purchaser or upon the
10939 expiration of 60 days after the date the assessment is due,
10940 whichever is later. For purposes of this subsection, an
10941 affiliated exchange program shall be any exchange program which
10942 has a contractual relationship with the creating developer or
10943 the managing entity of the timeshare plan, or any exchange
10944 program that notifies the managing entity in writing that it has
10945 members that are purchasers of the timeshare plan, and the
10946 exchange companies operating such affiliated exchange programs
10947 shall be affiliated exchange companies. Any denial of use for
10948 failure to pay assessments shall be implemented only pursuant to
10949 this subsection.
10950 (7) Unless the articles of incorporation, the bylaws, or
10951 the provisions of this chapter provide for a higher quorum
10952 requirement, the percentage of voting interests required to make
10953 decisions and to constitute a quorum at a meeting of the members
10954 of a timeshare condominium or owners’ association shall be 15
10955 percent of the voting interests. If a quorum is not present at
10956 any meeting of the owners’ association at which members of the
10957 board of administration are to be elected, the meeting may be
10958 adjourned and reconvened within 90 days for the sole purpose of
10959 electing members of the board of administration, and the quorum
10960 for such adjourned meeting shall be 15 percent of the voting
10961 interests. This provision shall apply notwithstanding any
10962 provision of chapter 718 or chapter 719 to the contrary.
10963 (8) Notwithstanding anything to the contrary in s. 718.110,
10964 s. 718.113, or s. 718.114, or s. 719.1055, the board of
10965 administration of any owners’ association that operates a
10966 timeshare condominium pursuant to s. 718.111, or a timeshare
10967 cooperative pursuant to s. 719.104, shall have the power to make
10968 material alterations or substantial additions to the
10969 accommodations or facilities of such timeshare condominium or
10970 timeshare cooperative without the approval of the owners’
10971 association. However, if the timeshare condominium or timeshare
10972 cooperative contains any residential units that are not subject
10973 to the timeshare plan, such action by the board of
10974 administration must be approved by a majority of the owners of
10975 such residential units. Unless otherwise provided in the
10976 timeshare instrument as originally recorded, no such amendment
10977 may change the configuration or size of any accommodation in any
10978 material fashion, or change the proportion or percentage by
10979 which a member of the owners’ association shares the common
10980 expenses, unless the record owners of the affected units or
10981 timeshare interests and all record owners of liens on the
10982 affected units or timeshare interests join in the execution of
10983 the amendment.
10984 Section 120. Subsection (3) of section 721.14, Florida
10985 Statutes, is amended to read:
10986 721.14 Discharge of managing entity.—
10987 (3) The managing entity of a timeshare plan subject to the
10988 provisions of chapter 718 or chapter 719 may be discharged
10989 pursuant to chapter 718 or chapter 719, respectively, or its
10990 successor or pursuant to this section.
10991 Section 121. Paragraph (b) of subsection (1) and
10992 subsections (6), (9), and (11) of section 721.15, Florida
10993 Statutes, are amended to read:
10994 721.15 Assessments for common expenses.—
10995 (1)
10996 (b) Notwithstanding any provision of chapter 718 or chapter
10997 719 to the contrary, the allocation of total common expenses for
10998 a condominium or a cooperative timeshare plan may vary on any
10999 reasonable basis, including, but not limited to, timeshare unit
11000 size, timeshare unit type, timeshare unit location, specific
11001 identification, or a combination of these factors, if the
11002 percentage interest in the common elements attributable to each
11003 timeshare condominium parcel or timeshare cooperative parcel
11004 equals the share of the total common expenses allocable to that
11005 parcel. The share of a timeshare interest in the common expenses
11006 allocable to the timeshare condominium parcel or the timeshare
11007 cooperative parcel containing such interest may vary on any
11008 reasonable basis if the timeshare interest’s share of its
11009 parcel’s common expense allocation is equal to that timeshare
11010 interest’s share of the percentage interest in common elements
11011 attributable to such parcel.
11012 (6) Notwithstanding any contrary requirements of s.
11013 718.112(2)(h) 718.112(2)(g) or s. 719.106(1)(g), for timeshare
11014 plans subject to this chapter, assessments against purchasers
11015 need not be made more frequently than annually.
11016 (9)(a) Anything contained in chapter 718 or chapter 719 to
11017 the contrary notwithstanding, the managing entity of a timeshare
11018 plan shall not commingle operating funds with reserve funds;
11019 however, the managing entity may maintain operating and reserve
11020 funds within a single account for a period not to exceed 30 days
11021 after the date on which the managing entity received payment of
11022 such funds.
11023 (b) Anything contained in chapter 718 or chapter 719 to the
11024 contrary notwithstanding, a managing entity which serves as
11025 managing entity of more than one timeshare plan, or of more than
11026 one component site pursuant to part II, shall not commingle the
11027 common expense funds of any one timeshare plan or component site
11028 with the common expense funds of any other timeshare plan or
11029 component site. However, the managing entity may maintain common
11030 expense funds of multiple timeshare plans or multiple component
11031 sites within a single account for a period not to exceed 30 days
11032 after the date on which the managing entity received payment of
11033 such funds.
11034 (11) Notwithstanding any provision of chapter 718 or
11035 chapter 719 to the contrary, any determination by a timeshare
11036 association of whether assessments exceed 115 percent of
11037 assessments for the prior fiscal year shall exclude anticipated
11038 expenses for insurance coverage required by law or by the
11039 timeshare instrument to be maintained by the association.
11040 Section 122. Subsection (3) of section 721.16, Florida
11041 Statutes, is amended to read:
11042 721.16 Liens for overdue assessments; liens for labor
11043 performed on, or materials furnished to, a timeshare unit.—
11044 (3) The lien is effective from the date of recording a
11045 claim of lien in the official records of the county or counties
11046 in which the timeshare interest is located. The claim of lien
11047 shall state the name of the timeshare plan and identify the
11048 timeshare interest for which the lien is effective, state the
11049 name of the purchaser, state the assessment amount due, and
11050 state the due dates. Notwithstanding any provision of s.
11051 718.116(6) 718.116(5) or s. 719.108(4) to the contrary, the lien
11052 is effective until satisfied or until 5 years have expired after
11053 the date the claim of lien is recorded unless, within that time,
11054 an action to enforce the lien is commenced pursuant to
11055 subsection (2). A claim of lien for assessments may include only
11056 assessments which are due when the claim is recorded. A claim of
11057 lien shall be signed and acknowledged by an officer or agent of
11058 the managing entity. Upon full payment, the person making the
11059 payment is entitled to receive a satisfaction of the lien.
11060 Section 123. Subsections (1) and (4) of section 721.165,
11061 Florida Statutes, are amended to read:
11062 721.165 Insurance.—
11063 (1) Notwithstanding any provision contained in the
11064 timeshare instrument or in this chapter or, chapter 718, or
11065 chapter 719 to the contrary, the managing entity shall use due
11066 diligence to obtain adequate casualty insurance as a common
11067 expense of the timeshare plan to protect the timeshare property
11068 against all reasonably foreseeable perils, in such covered
11069 amounts and subject to such reasonable exclusions and reasonable
11070 deductibles as are consistent with the provisions of this
11071 section.
11072 (4) Notwithstanding any provision contained in the
11073 timeshare instrument or in this chapter or, chapter 718, or
11074 chapter 719 to the contrary, the managing entity is authorized
11075 to apply any existing reserves for deferred maintenance and
11076 capital expenditures toward payment of insurance deductibles or
11077 the repair or replacement of the timeshare property after a
11078 casualty without regard to the purposes for which such reserves
11079 were originally established.
11080 Section 124. Subsection (1) of section 721.17, Florida
11081 Statutes, is amended to read:
11082 721.17 Transfer of interest; resale transfer agreements.—
11083 (1) Except in the case of a timeshare plan subject to the
11084 provisions of chapter 718 or chapter 719, no developer, owner of
11085 the underlying fee, or owner of the underlying personal property
11086 shall sell, lease, assign, mortgage, or otherwise transfer his
11087 or her interest in the accommodations and facilities of the
11088 timeshare plan except by an instrument evidencing the transfer
11089 recorded in the public records of the county in which such
11090 accommodations and facilities are located or, with respect to
11091 personal property timeshare plans, in full compliance with s.
11092 721.08. The instrument shall be executed by both the transferor
11093 and transferee and shall state:
11094 (a) That its provisions are intended to protect the rights
11095 of all purchasers of the plan.
11096 (b) That its terms may be enforced by any prior or
11097 subsequent timeshare purchaser so long as that purchaser is not
11098 in default of his or her obligations.
11099 (c) That so long as a purchaser remains in good standing
11100 with respect to her or his obligations under the timeshare
11101 instrument, including making all payments to the managing entity
11102 required by the timeshare instrument with respect to the annual
11103 common expenses of the timeshare plan, the transferee shall
11104 honor all rights of such purchaser relating to the subject
11105 accommodation or facility as reflected in the timeshare
11106 instrument.
11107 (d) That the transferee will fully honor all rights of
11108 timeshare purchasers to cancel their contracts and receive
11109 appropriate refunds.
11110 (e) That the obligations of the transferee under such
11111 instrument will continue to exist despite any cancellation or
11112 rejection of the contracts between the developer and purchaser
11113 arising out of bankruptcy proceedings.
11114 Section 125. Subsection (3) of section 721.20, Florida
11115 Statutes, is amended to read:
11116 721.20 Licensing requirements; suspension or revocation of
11117 license; exceptions to applicability; collection of advance fees
11118 for listings unlawful.—
11119 (3) A solicitor who has violated the provisions of chapter
11120 468, chapter 718, chapter 719, this chapter, or the rules of the
11121 division governing timesharing shall be subject to the
11122 provisions of s. 721.26. Any developer or other person who
11123 supervises, directs, or engages the services of a solicitor
11124 shall be liable for any violation of the provisions of chapter
11125 468, chapter 718, chapter 719, this chapter, or the rules of the
11126 division governing timesharing committed by such solicitor.
11127 Section 126. Subsections (1) and (2) of section 721.24,
11128 Florida Statutes, are amended to read:
11129 721.24 Firesafety.—
11130 (1) Any:
11131 (a) Facility or accommodation of a timeshare plan, as
11132 defined in this chapter or, chapter 718, or chapter 719, which
11133 is of three stories or more and for which the construction
11134 contract has been let after September 30, 1983, with interior
11135 corridors which do not have direct access from the timeshare
11136 unit to exterior means of egress, or
11137 (b) Building over 75 feet in height that has direct access
11138 from the timeshare unit to exterior means of egress and for
11139 which the construction contract has been let after September 30,
11140 1983,
11141
11142 shall be equipped with an automatic sprinkler system installed
11143 in compliance with the provisions prescribed in the National
11144 Fire Protection Association publication NFPA No. 13 (1985),
11145 “Standards for the Installation of Sprinkler Systems.” The
11146 sprinkler installation may be omitted in closets which are not
11147 over 24 square feet in area and in bathrooms which are not over
11148 55 square feet in area, which closets and bathrooms are located
11149 in timeshare units. Each timeshare unit shall be equipped with
11150 an approved listed single-station smoke detector meeting the
11151 minimum requirements of NFPA-74 (1984), “Standards for the
11152 Installation, Maintenance and Use of Household Fire Warning
11153 Equipment,” powered from the building electrical service,
11154 notwithstanding the number of stories in the structure, if the
11155 contract for construction is let after September 30, 1983.
11156 Single-station smoke detection is not required when a timeshare
11157 unit’s smoke detectors are connected to a central alarm system
11158 which also alarms locally.
11159 (2) Any timeshare unit of a timeshare plan, as defined in
11160 this chapter or, chapter 718, or chapter 719 which is of three
11161 stories or more and for which the construction contract was let
11162 before October 1, 1983, shall be equipped with:
11163 (a) A system which complies with subsection (1); or
11164 (b) An approved sprinkler system for all interior
11165 corridors, public areas, storage rooms, closets, kitchen areas,
11166 and laundry rooms, less individual timeshare units, if the
11167 following conditions are met:
11168 1. There is a minimum 1-hour separation between each
11169 timeshare unit and between each timeshare unit and a corridor.
11170 2. The building is constructed of noncombustible materials.
11171 3. The egress conditions meet the requirements of s. 5-3 of
11172 the Life Safety Code, NFPA 101 (1985).
11173 4. The building has a complete automatic fire detection
11174 system which meets the requirements of NFPA-72A (1987) and NFPA
11175 72E (1984), including smoke detectors in each timeshare unit
11176 individually annunciating to a panel at a supervised location.
11177 Section 127. Section 721.26, Florida Statutes, is amended
11178 to read:
11179 721.26 Regulation by division.—The division has the power
11180 to enforce and ensure compliance with this chapter, except for
11181 parts III and IV, using the powers provided in this chapter, as
11182 well as the powers prescribed in chapter chapters 718 and 719.
11183 In performing its duties, the division shall have the following
11184 powers and duties:
11185 (1) To aid in the enforcement of this chapter, or any
11186 division rule adopted or order issued pursuant to this chapter,
11187 the division may make necessary public or private investigations
11188 within or outside this state to determine whether any person has
11189 violated or is about to violate this chapter, or any division
11190 rule adopted or order issued pursuant to this chapter.
11191 (2) The division may require or permit any person to file a
11192 written statement under oath or otherwise, as the division
11193 determines, as to the facts and circumstances concerning a
11194 matter under investigation.
11195 (3) For the purpose of any investigation under this
11196 chapter, the director of the division or any officer or employee
11197 designated by the director may administer oaths or affirmations,
11198 subpoena witnesses and compel their attendance, take evidence,
11199 and require the production of any matter which is relevant to
11200 the investigation, including the identity, existence,
11201 description, nature, custody, condition, and location of any
11202 books, documents, or other tangible things and the identity and
11203 location of persons having knowledge of relevant facts or any
11204 other matter reasonably calculated to lead to the discovery of
11205 material evidence. Failure to obey a subpoena or to answer
11206 questions propounded by the investigating officer and upon
11207 reasonable notice to all persons affected thereby shall be a
11208 violation of this chapter. In addition to the other enforcement
11209 powers authorized in this subsection, the division may apply to
11210 the circuit court for an order compelling compliance.
11211 (4) The division may prepare and disseminate a prospectus
11212 and other information to assist prospective purchasers, sellers,
11213 and managing entities of timeshare plans in assessing the
11214 rights, privileges, and duties pertaining thereto.
11215 (5) Notwithstanding any remedies available to purchasers,
11216 if the division has reasonable cause to believe that a violation
11217 of this chapter, or of any division rule adopted or order issued
11218 pursuant to this chapter, has occurred, the division may
11219 institute enforcement proceedings in its own name against any
11220 regulated party, as such term is defined in this subsection:
11221 (a)1. “Regulated party,” for purposes of this section,
11222 means any developer, exchange company, seller, managing entity,
11223 owners’ association, owners’ association director, owners’
11224 association officer, manager, management firm, escrow agent,
11225 trustee, any respective assignees or agents, or any other person
11226 having duties or obligations pursuant to this chapter.
11227 2. Any person who materially participates in any offer or
11228 disposition of any interest in, or the management or operation
11229 of, a timeshare plan in violation of this chapter or relevant
11230 rules involving fraud, deception, false pretenses,
11231 misrepresentation, or false advertising or the disbursement,
11232 concealment, or diversion of any funds or assets, which conduct
11233 adversely affects the interests of a purchaser, and which person
11234 directly or indirectly controls a regulated party or is a
11235 general partner, officer, director, agent, or employee of such
11236 regulated party, shall be jointly and severally liable under
11237 this subsection with such regulated party, unless such person
11238 did not know, and in the exercise of reasonable care could not
11239 have known, of the existence of the facts giving rise to the
11240 violation of this chapter. A right of contribution shall exist
11241 among jointly and severally liable persons pursuant to this
11242 paragraph.
11243 (b) The division may permit any person whose conduct or
11244 actions may be under investigation to waive formal proceedings
11245 and enter into a consent proceeding whereby an order, rule, or
11246 letter of censure or warning, whether formal or informal, may be
11247 entered against that person.
11248 (c) The division may issue an order requiring a regulated
11249 party to cease and desist from an unlawful practice under this
11250 chapter and take such affirmative action as in the judgment of
11251 the division will carry out the purposes of this chapter.
11252 (d)1. The division may bring an action in circuit court for
11253 declaratory or injunctive relief or for other appropriate
11254 relief, including restitution.
11255 2. The division shall have broad authority and discretion
11256 to petition the circuit court to appoint a receiver with respect
11257 to any managing entity which fails to perform its duties and
11258 obligations under this chapter with respect to the operation of
11259 a timeshare plan. The circumstances giving rise to an
11260 appropriate petition for receivership under this subparagraph
11261 include, but are not limited to:
11262 a. Damage to or destruction of any of the accommodations or
11263 facilities of a timeshare plan, where the managing entity has
11264 failed to repair or reconstruct same.
11265 b. A breach of fiduciary duty by the managing entity,
11266 including, but not limited to, undisclosed self-dealing or
11267 failure to timely assess, collect, or disburse the common
11268 expenses of the timeshare plan.
11269 c. Failure of the managing entity to operate the timeshare
11270 plan in accordance with the timeshare instrument and this
11271 chapter.
11272
11273 If, under the circumstances, it appears that the events giving
11274 rise to the petition for receivership cannot be reasonably and
11275 timely corrected in a cost-effective manner consistent with the
11276 timeshare instrument, the receiver may petition the circuit
11277 court to implement such amendments or revisions to the timeshare
11278 instrument as may be necessary to enable the managing entity to
11279 resume effective operation of the timeshare plan, or to enter an
11280 order terminating the timeshare plan, or to enter such further
11281 orders regarding the disposition of the timeshare property as
11282 the court deems appropriate, including the disposition and sale
11283 of the timeshare property held by the owners’ association or the
11284 purchasers. In the event of a receiver’s sale, all rights,
11285 title, and interest held by the owners’ association or any
11286 purchaser shall be extinguished and title shall vest in the
11287 buyer. This provision applies to timeshare estates, personal
11288 property timeshare interests, and timeshare licenses. All
11289 reasonable costs and fees of the receiver relating to the
11290 receivership shall become common expenses of the timeshare plan
11291 upon order of the court.
11292 3. The division may revoke its approval of any filing for
11293 any timeshare plan for which a petition for receivership has
11294 been filed pursuant to this paragraph.
11295 (e)1. The division may impose a penalty against any
11296 regulated party for a violation of this chapter or any rule
11297 adopted thereunder. A penalty may be imposed on the basis of
11298 each day of continuing violation, but in no event may the
11299 penalty for any offense exceed $10,000. All accounts collected
11300 shall be deposited with the Chief Financial Officer to the
11301 credit of the Division of Common Interest Communities Florida
11302 Condominiums, Timeshares, and Mobile Homes Trust Fund.
11303 2.a. If a regulated party fails to pay a penalty, the
11304 division shall thereupon issue an order directing that such
11305 regulated party cease and desist from further operation until
11306 such time as the penalty is paid; or the division may pursue
11307 enforcement of the penalty in a court of competent jurisdiction.
11308 b. If an owners’ association or managing entity fails to
11309 pay a civil penalty, the division may pursue enforcement in a
11310 court of competent jurisdiction.
11311 (f) In order to permit the regulated party an opportunity
11312 to appeal such decision administratively or to seek relief in a
11313 court of competent jurisdiction, the order imposing the penalty
11314 or the cease and desist order shall not become effective until
11315 20 days after the date of such order.
11316 (g) Any action commenced by the division shall be brought
11317 in the county in which the division has its executive offices or
11318 in the county where the violation occurred.
11319 (h) Notice to any regulated party shall be complete when
11320 delivered by United States mail, return receipt requested, to
11321 the party’s address currently on file with the division or to
11322 such other address at which the division is able to locate the
11323 party. Every regulated party has an affirmative duty to notify
11324 the division of any change of address at least 5 business days
11325 prior to such change.
11326 (6) The division has authority to adopt rules pursuant to
11327 ss. 120.536(1) and 120.54 to implement and enforce the
11328 provisions of this chapter.
11329 (7)(a) The use of any unfair or deceptive act or practice
11330 by any person in connection with the sales or other operations
11331 of an exchange program or timeshare plan is a violation of this
11332 chapter.
11333 (b) Any violation of the Florida Deceptive and Unfair Trade
11334 Practices Act, ss. 501.201 et seq., relating to the creation,
11335 promotion, sale, operation, or management of any timeshare plan
11336 shall also be a violation of this chapter.
11337 (c) The division may institute proceedings against any such
11338 person and take any appropriate action authorized in this
11339 section in connection therewith, notwithstanding any remedies
11340 available to purchasers.
11341 (8) The failure of any person to comply with any order of
11342 the division is a violation of this chapter.
11343 Section 128. Section 721.28, Florida Statutes, is amended
11344 to read:
11345 721.28 Division of Common Interest Communities Florida
11346 Condominiums, Timeshares, and Mobile Homes Trust Fund.—All funds
11347 collected by the division and any amounts paid as fees or
11348 penalties under this chapter shall be deposited in the State
11349 Treasury to the credit of the Division of Common Interest
11350 Communities Florida Condominiums, Timeshares, and Mobile Homes
11351 Trust Fund created by s. 718.509.
11352 Section 129. Paragraph (c) of subsection (1) of section
11353 721.301, Florida Statutes, is amended to read:
11354 721.301 Florida Timesharing, Vacation Club, and Hospitality
11355 Program.—
11356 (1)
11357 (c) The director may designate funds from the Division of
11358 Common Interest Communities Florida Condominiums, Timeshares,
11359 and Mobile Homes Trust Fund, not to exceed $50,000 annually, to
11360 support the projects and proposals undertaken pursuant to
11361 paragraph (b). All state trust funds to be expended pursuant to
11362 this section must be matched equally with private moneys and
11363 shall comprise no more than half of the total moneys expended
11364 annually.
11365 Section 130. Subsection (2) of section 721.82, Florida
11366 Statutes, is amended to read:
11367 721.82 Definitions.—As used in this part, the term:
11368 (2) “Assessment lien” means:
11369 (a) A lien for delinquent assessments as provided in ss.
11370 718.116, 719.108, and 721.16; or
11371 (b) A lien for unpaid ad valorem assessments, tax
11372 assessments, and special assessments as provided in s.
11373 192.037(8).
11374 Section 131. Paragraph (b) of subsection (2) of section
11375 721.855, Florida Statutes, is amended to read:
11376 721.855 Procedure for the trustee foreclosure of assessment
11377 liens.—The provisions of this section establish a trustee
11378 foreclosure procedure for assessment liens.
11379 (2) INITIATING THE USE OF A TRUSTEE FORECLOSURE PROCEDURE.—
11380 (b) Before initiating the trustee foreclosure procedure
11381 against any timeshare interest, a claim of lien against the
11382 timeshare interest shall be recorded under s. 721.16 or, if
11383 applicable, s. 718.116 or s. 719.108, and the notice of the
11384 intent to file a lien shall be given under s. 718.121 for common
11385 interest communities timeshare condominiums and s. 719.108 for
11386 timeshare cooperatives.
11387 Section 132. Subsection (1) of section 721.86, Florida
11388 Statutes, is amended to read:
11389 721.86 Miscellaneous provisions.—
11390 (1) In the event of a conflict between the provisions of
11391 this part and the other provisions of this chapter, chapter 702,
11392 or other applicable law, the provisions of this part shall
11393 prevail. The procedures in this part must be given effect in the
11394 context of any foreclosure proceedings against timeshare
11395 interests governed by this chapter, chapter 702, or chapter 718,
11396 or chapter 719.
11397 Section 133. Subsection (2) and paragraph (a) of subsection
11398 (7) of section 723.003, Florida Statutes, are amended to read:
11399 723.003 Definitions.—As used in this chapter, the term:
11400 (2) “Division” means the Division of Common Interest
11401 Communities Florida Condominiums, Timeshares, and Mobile Homes
11402 of the Department of Business and Professional Regulation.
11403 (7)(a) “Mediation” means a process whereby a mediator
11404 appointed by the Division of Common Interest Communities Florida
11405 Condominiums, Timeshares, and Mobile Homes, or mutually selected
11406 by the parties, acts to encourage and facilitate the resolution
11407 of a dispute. It is an informal and nonadversarial process with
11408 the objective of helping the disputing parties reach a mutually
11409 acceptable agreement.
11410 Section 134. Paragraph (e) of subsection (5) of section
11411 723.006, Florida Statutes, is amended to read:
11412 723.006 Powers and duties of division.—In performing its
11413 duties, the division has the following powers and duties:
11414 (5) Notwithstanding any remedies available to mobile home
11415 owners, mobile home park owners, and homeowners’ associations,
11416 if the division has reasonable cause to believe that a violation
11417 of any provision of this chapter or related rule has occurred,
11418 the division may institute enforcement proceedings in its own
11419 name against a developer, mobile home park owner, or homeowners’
11420 association, or its assignee or agent, as follows:
11421 (e)1. The division may impose a civil penalty against a
11422 mobile home park owner or homeowners’ association, or its
11423 assignee or agent, for any violation of this chapter, a properly
11424 adopted park rule or regulation, or a rule adopted pursuant
11425 hereto. A penalty may be imposed on the basis of each separate
11426 violation and, if the violation is a continuing one, for each
11427 day of continuing violation, but in no event may the penalty for
11428 each separate violation or for each day of continuing violation
11429 exceed $5,000. All amounts collected shall be deposited with the
11430 Chief Financial Officer to the credit of the Division of Common
11431 Interest Communities Florida Condominiums, Timeshares, and
11432 Mobile Homes Trust Fund.
11433 2. If a violator fails to pay the civil penalty, the
11434 division shall thereupon issue an order directing that such
11435 violator cease and desist from further violation until such time
11436 as the civil penalty is paid or may pursue enforcement of the
11437 penalty in a court of competent jurisdiction. If a homeowners’
11438 association fails to pay the civil penalty, the division shall
11439 thereupon pursue enforcement in a court of competent
11440 jurisdiction, and the order imposing the civil penalty or the
11441 cease and desist order shall not become effective until 20 days
11442 after the date of such order. Any action commenced by the
11443 division shall be brought in the county in which the division
11444 has its executive offices or in which the violation occurred.
11445 Section 135. Section 723.009, Florida Statutes, is amended
11446 to read:
11447 723.009 Division of Common Interest Communities Florida
11448 Condominiums, Timeshares, and Mobile Homes Trust Fund.—All
11449 proceeds from the fees, penalties, and fines imposed pursuant to
11450 this chapter shall be deposited into the Division of Common
11451 Interest Communities Florida Condominiums, Timeshares, and
11452 Mobile Homes Trust Fund created by s. 718.509. Moneys in this
11453 fund, as appropriated by the Legislature pursuant to chapter
11454 216, may be used to defray the expenses incurred by the division
11455 in administering the provisions of this chapter.
11456 Section 136. Paragraph (c) of subsection (2) of section
11457 723.0611, Florida Statutes, is amended to read:
11458 723.0611 Florida Mobile Home Relocation Corporation.—
11459 (2)
11460 (c) The corporation shall, for purposes of s. 768.28, be
11461 considered an agency of the state. Agents or employees of the
11462 corporation, members of the board of directors of the
11463 corporation, or representatives of the Division of Common
11464 Interest Communities Florida Condominiums, Timeshares, and
11465 Mobile Homes shall be considered officers, employees, or agents
11466 of the state, and actions against them and the corporation shall
11467 be governed by s. 768.28.
11468 Section 137. Section 723.073, Florida Statutes, is amended
11469 to read:
11470 723.073 Conveyance by the association.—
11471 (1) In the event that an association acquires a mobile home
11472 park and intends to reconvey a portion or portions of the
11473 property acquired to members of the association, the association
11474 shall record copies of its articles and bylaws and any
11475 additional covenants, restrictions, or declarations of servitude
11476 affecting the property with the clerk of the circuit court prior
11477 to the conveyance of any portion of the property to an
11478 individual member of the association. To create a mobile home
11479 cooperative after acquisition of the property, the association
11480 shall record the cooperative documents, as required by chapter
11481 718 719, in the county where the property is located. The
11482 effective date of the cooperative shall be the date of the
11483 recording.
11484 (2) An association that acquires a mobile home park
11485 pursuant to s. 723.071 is exempt from s. 719.1035 and the
11486 requirements of part VI of chapter 718 and part VI of chapter
11487 719.
11488 Section 138. Subsection (1) of section 723.0751, Florida
11489 Statutes, is amended to read:
11490 723.0751 Mobile home subdivision homeowners’ association.—
11491 (1) In the event that no homeowners’ association has been
11492 created pursuant to chapter 718 ss. 720.301-720.312 to operate a
11493 mobile home subdivision, the owners of lots in such mobile home
11494 subdivision shall be authorized to create a mobile home
11495 subdivision homeowners’ association in the manner prescribed in
11496 ss. 723.075, 723.076, and 723.078 which shall have the powers
11497 and duties, to the extent applicable, set forth in ss.
11498 723.002(2) and 723.074.
11499 Section 139. Subsection (5) of section 723.078, Florida
11500 Statutes, is amended to read:
11501 723.078 Bylaws of homeowners’ associations.—
11502 (5) Upon purchase of the mobile home park, the association
11503 organized under this chapter may convert to a condominium,
11504 cooperative, or subdivision. The directors shall have the
11505 authority to amend and restate the articles of incorporation and
11506 bylaws in order to comply with the requirements of chapter 718,
11507 chapter 719, or other applicable sections of the Florida
11508 Statutes.
11509 Section 140. Subsection (12) of section 723.079, Florida
11510 Statutes, is amended to read:
11511 723.079 Powers and duties of homeowners’ association.—
11512 (12) For a period of 180 days after the date of a purchase
11513 of a mobile home park by the association, the association shall
11514 not be required to comply with the provisions of part V of
11515 chapter 718, part V of chapter 719, or part II of chapter 720,
11516 as to mobile home owners or persons who have executed contracts
11517 to purchase mobile homes in the park.
11518 Section 141. Section 723.0791, Florida Statutes, is amended
11519 to read:
11520 723.0791 Mobile home cooperative homeowners’ associations;
11521 elections.—The provisions of s. 718.112 719.106(1)(b)
11522 notwithstanding, the election of board members in a mobile home
11523 cooperative homeowners’ association may be carried out in the
11524 manner provided for in the bylaws of the association. A mobile
11525 home cooperative is a residential cooperative consisting of real
11526 property to which 10 or more mobile homes are located or are
11527 affixed.
11528 Section 142. Section 723.1255, Florida Statutes, is amended
11529 to read:
11530 723.1255 Alternative resolution of recall disputes.—The
11531 Division of Common Interest Communities Florida Condominiums,
11532 Timeshares, and Mobile Homes of the Department of Business and
11533 Professional Regulation shall adopt rules of procedure to govern
11534 binding recall arbitration proceedings.
11535 Section 143. Subsections (3) and (6) of section 768.1325,
11536 Florida Statutes, are amended to read:
11537 768.1325 Cardiac Arrest Survival Act; immunity from civil
11538 liability.—
11539 (3) Notwithstanding any other provision of law to the
11540 contrary, and except as provided in subsection (4), any person
11541 who uses or attempts to use an automated external defibrillator
11542 device on a victim of a perceived medical emergency, without
11543 objection of the victim of the perceived medical emergency, is
11544 immune from civil liability for any harm resulting from the use
11545 or attempted use of such device. In addition, notwithstanding
11546 any other provision of law to the contrary, and except as
11547 provided in subsection (4), any person who acquired the device
11548 and makes it available for use, including, but not limited to, a
11549 community association organized under chapter 617, chapter 718,
11550 chapter 719, chapter 720, chapter 721, or chapter 723, is immune
11551 from such liability, if the harm was not due to the failure of
11552 such person to:
11553 (a) Properly maintain and test the device; or
11554 (b) Provide appropriate training in the use of the device
11555 to an employee or agent of the acquirer when the employee or
11556 agent was the person who used the device on the victim, except
11557 that such requirement of training does not apply if:
11558 1. The device is equipped with audible, visual, or written
11559 instructions on its use, including any such visual or written
11560 instructions posted on or adjacent to the device;
11561 2. The employee or agent was not an employee or agent who
11562 would have been reasonably expected to use the device; or
11563 3. The period of time elapsing between the engagement of
11564 the person as an employee or agent and the occurrence of the
11565 harm, or between the acquisition of the device and the
11566 occurrence of the harm in any case in which the device was
11567 acquired after engagement of the employee or agent, was not a
11568 reasonably sufficient period in which to provide the training.
11569 (6) An insurer may not require an acquirer of an automated
11570 external defibrillator device which is a community association
11571 organized under chapter 617, chapter 718, chapter 719, chapter
11572 720, chapter 721, or chapter 723 to purchase medical malpractice
11573 liability coverage as a condition of issuing any other coverage
11574 carried by the association, and an insurer may not exclude
11575 damages resulting from the use of an automated external
11576 defibrillator device from coverage under a general liability
11577 policy issued to an association.
11578 Section 144. Subsection (5) of section 849.085, Florida
11579 Statutes, is amended to read:
11580 849.085 Certain penny-ante games not crimes; restrictions.—
11581 (5) The conduct of any penny-ante game within the common
11582 elements or common area of a common interest community
11583 condominium, cooperative, residential subdivision, or mobile
11584 home park or the conduct of any penny-ante game within the
11585 dwelling of an eligible organization as defined in subsection
11586 (2) or within a publicly owned community center owned by a
11587 municipality or county creates no civil liability for damages
11588 arising from the penny-ante game on the part of a common
11589 interest community condominium association, cooperative
11590 association, a homeowners’ association as defined in s. 718.103
11591 s. 720.301, mobile home owners’ association, dwelling owner, or
11592 municipality or county or on the part of a unit owner who was
11593 not a participant in the game.
11594 Section 145. Subsection (4) and paragraph (e) of subsection
11595 (11) of section 849.0931, Florida Statutes, are amended to read:
11596 849.0931 Bingo authorized; conditions for conduct;
11597 permitted uses of proceeds; limitations.—
11598 (4) The right of a condominium association, a cooperative
11599 association, a homeowners’ association as defined in s. 720.301,
11600 a mobile home owners’ association, a group of residents of a
11601 mobile home park as defined in chapter 723, or a group of
11602 residents of a mobile home park or recreational vehicle park as
11603 defined in chapter 513 to conduct bingo is conditioned upon the
11604 return of the net proceeds from such games to players in the
11605 form of prizes after having deducted the actual business
11606 expenses for such games for articles designed for and essential
11607 to the operation, conduct, and playing of bingo. Any net
11608 proceeds remaining after paying prizes may be donated by the
11609 association to a charitable, nonprofit, or veterans’
11610 organization which is exempt from federal income tax under the
11611 provisions of s. 501(c) of the Internal Revenue Code to be used
11612 in such recipient organization’s charitable, civic, community,
11613 benevolent, religious, or scholastic works or similar activities
11614 or, in the alternative, such remaining proceeds shall be used as
11615 specified in subsection (3).
11616 (11) Bingo games or instant bingo may be held only on the
11617 following premises:
11618 (e) With respect to bingo games conducted by a common
11619 interest community condominium association, a cooperative
11620 association, a homeowners’ association as defined in s. 720.301,
11621 a mobile home owners’ association, a group of residents of a
11622 mobile home park as defined in chapter 723, or a group of
11623 residents of a mobile home park or recreational vehicle park as
11624 defined in chapter 513, property owned by the association,
11625 property owned by the residents of the mobile home park or
11626 recreational vehicle park, or property which is a common area
11627 located within the condominium, mobile home park, or
11628 recreational vehicle park.
11629 Section 146. This act shall take effect July 1, 2016.