Florida Senate - 2017 SENATOR AMENDMENT
Bill No. CS/CS/CS/HB 735, 2nd Eng.
Ì892280%Î892280
LEGISLATIVE ACTION
Senate . House
.
.
.
Floor: 1/AE/2R . Floor: SENA1/RC
05/04/2017 10:15 PM . 05/05/2017 06:09 PM
—————————————————————————————————————————————————————————————————
—————————————————————————————————————————————————————————————————
Senator Passidomo moved the following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Section 702.12, Florida Statutes, is created to
6 read:
7 702.12 Actions in foreclosure.—
8 (1)(a) A lienholder, in an action to foreclose a mortgage,
9 may submit any document the defendant filed in the defendant’s
10 bankruptcy case under penalty of perjury for use as an admission
11 by the defendant.
12 (b) A rebuttable presumption that the defendant has waived
13 any defenses to the foreclosure is created if a lienholder
14 submits documents filed in the defendant’s bankruptcy case
15 which:
16 1. Evidence the defendant’s intention to surrender to the
17 lienholder the property that is the subject of the foreclosure;
18 2. Have not been withdrawn by the defendant; and
19 3. Show that a final order has been entered in the
20 defendant’s bankruptcy case which discharges the defendant’s
21 debts or confirms the defendant’s repayment plan that provides
22 for the surrender of the property.
23 (2) Pursuant to s. 90.203, a court shall take judicial
24 notice of any order entered in a bankruptcy case upon the
25 request of a lienholder.
26 (3) This section does not preclude the defendant in a
27 foreclosure action from raising a defense based upon the
28 lienholder’s action or inaction subsequent to the filing of the
29 document filed in the bankruptcy case which evidenced the
30 defendant’s intention to surrender the mortgaged property to the
31 lienholder.
32 (4) This section applies to any foreclosure action filed on
33 or after October 1, 2017.
34 Section 2. Subsection (6) of section 125.022, Florida
35 Statutes, is amended to read:
36 125.022 Development permits.—
37 (6) A county may not delegate its police power to a third
38 party by restriction, covenant, or otherwise. The imposition by
39 a county of a recorded or unrecorded restriction or covenant as
40 a condition of a county’s approval or issuance of a development
41 permit does not preclude the county from exercising its police
42 power to later amend, release, or terminate the restriction or
43 covenant. Any such amendment, release, or termination of the
44 restriction or covenant must follow the procedural requirements
45 in s. 125.66(4). This section does not prohibit a county from
46 providing information to an applicant regarding what other
47 state or federal permits may apply.
48 Section 3. Subsection (6) of section 166.033, Florida
49 Statutes, is amended to read:
50 166.033 Development permits.—
51 (6) A municipality may not delegate its police power to a
52 third party by restriction, covenant, or otherwise. The
53 imposition by a municipality of a recorded or unrecorded
54 restriction or covenant as a condition of a municipality’s
55 approval or issuance of a development permit does not preclude a
56 municipality from exercising its police power to later amend,
57 release, or terminate the restriction or covenant. Any such
58 amendment, release, or termination of the restriction or
59 covenant must follow the procedural requirements in s.
60 166.041(3)(c). This section does not prohibit a municipality
61 from providing information to an applicant regarding what other
62 state or federal permits may apply.
63 Section 4. Section 712.04, Florida Statutes, is amended to
64 read:
65 712.04 Interests extinguished by marketable record title.—
66 (1) Subject to s. 712.03, a marketable record title is free
67 and clear of all estates, interests, claims, covenants,
68 restrictions, or charges, the existence of which depends upon
69 any act, title transaction, event, zoning requirement, building
70 or development permit, or omission that occurred before the
71 effective date of the root of title. Except as provided in s.
72 712.03, all such estates, interests, claims, covenants,
73 restrictions, or charges, however denominated, whether they are
74 or appear to be held or asserted by a person sui juris or under
75 a disability, whether such person is within or without the
76 state, natural or corporate, or private or governmental, are
77 declared to be null and void. However, this chapter does not
78 affect any right, title, or interest of the United States,
79 Florida, or any of its officers, boards, commissions, or other
80 agencies reserved in the patent or deed by which the United
81 States, Florida, or any of its agencies parted with title.
82 (2) This section may not be construed to alter or
83 invalidate a zoning ordinance, land development regulation,
84 building code, or other ordinance, rule, regulation, or law if
85 such ordinance, rule, regulation, or law operates independently
86 of matters recorded in the official records.
87 Section 5. Section 712.001, Florida Statutes, is created to
88 read:
89 712.001 Short title.—This chapter may be cited as the
90 “Marketable Record Title Act.”
91 Section 6. Section 712.01, Florida Statutes, is reordered
92 and amended to read:
93 712.01 Definitions.—As used in this chapter, the term law:
94 (1) “Community covenant or restriction” means any agreement
95 or limitation contained in a document recorded in the public
96 records of the county in which a parcel is located which:
97 (a) Subjects the parcel to any use restriction that may be
98 enforced by a property owners’ association; or
99 (b) Authorizes a property owners’ association to impose a
100 charge or assessment against the parcel or the parcel owner.
101 (4)(1) The term “Person” includes the as used herein
102 denotes singular or plural, natural or corporate, private or
103 governmental, including the state and any political subdivision
104 or agency thereof as the context for the use thereof requires or
105 denotes and including any property owners’ homeowners’
106 association.
107 (6)(2) “Root of title” means any title transaction
108 purporting to create or transfer the estate claimed by any
109 person and which is the last title transaction to have been
110 recorded at least 30 years before prior to the time when
111 marketability is being determined. The effective date of the
112 root of title is the date on which it was recorded.
113 (7)(3) “Title transaction” means any recorded instrument or
114 court proceeding that which affects title to any estate or
115 interest in land and that which describes the land sufficiently
116 to identify its location and boundaries.
117 (5)(4) “Property owners’ association” The term “homeowners’
118 association” means a homeowners’ association as defined in s.
119 720.301, a corporation or other entity responsible for the
120 operation of property in which the voting membership is made up
121 of the owners of the property or their agents, or a combination
122 thereof, and in which membership is a mandatory condition of
123 property ownership, or an association of parcel owners which is
124 authorized to enforce a community covenant or restriction use
125 restrictions that is are imposed on the parcels.
126 (3)(5) The term “Parcel” means real property that which is
127 used for residential purposes and that is subject to exclusive
128 ownership and which is subject to any covenant or restriction of
129 a property owners’ homeowners’ association.
130 (2)(6) The term “Covenant or restriction” means any
131 agreement or limitation contained in a document recorded in the
132 public records of the county in which a parcel is located which
133 subjects the parcel to any use or other restriction or
134 obligation which may be enforced by a homeowners’ association or
135 which authorizes a homeowners’ association to impose a charge or
136 assessment against the parcel or the owner of the parcel or
137 which may be enforced by the Florida Department of Environmental
138 Protection pursuant to chapter 376 or chapter 403.
139 Section 7. Section 712.05, Florida Statutes, is amended to
140 read:
141 712.05 Effect of filing notice.—
142 (1) A person claiming an interest in land or other right
143 subject to extinguishment under this chapter a homeowners’
144 association desiring to preserve a covenant or restriction may
145 preserve and protect such interest or right the same from
146 extinguishment by the operation of this chapter act by filing
147 for record, at any time during the 30-year period immediately
148 following the effective date of the root of title, a written
149 notice in accordance with s. 712.06 this chapter.
150 (2) A property owners’ association may preserve and protect
151 a community covenant or restriction from extinguishment by the
152 operation of this chapter by filing for record, at any time
153 during the 30-year period immediately following the effective
154 date of the root of title:
155 (a) A written notice in accordance with s. 712.06; or
156 (b) A summary notice in substantial form and content as
157 required under s. 720.3032(2). Failure of a summary notice to be
158 indexed to the current owners of the affected property does not
159 affect the validity of the notice or vitiate the effect of the
160 filing of such notice.
161 (3) A Such notice under subsection (1) or subsection (2)
162 preserves an interest in land or other such claim of right
163 subject to extinguishment under this chapter, or a such covenant
164 or restriction or portion of such covenant or restriction, for
165 not less than up to 30 years after filing the notice unless the
166 notice is filed again as required in this chapter. A person’s
167 disability or lack of knowledge of any kind may not delay the
168 commencement of or suspend the running of the 30-year period.
169 Such notice may be filed for record by the claimant or by any
170 other person acting on behalf of a claimant who is:
171 (a) Under a disability;
172 (b) Unable to assert a claim on his or her behalf; or
173 (c) One of a class, but whose identity cannot be
174 established or is uncertain at the time of filing such notice of
175 claim for record.
176
177 Such notice may be filed by a homeowners’ association only if
178 the preservation of such covenant or restriction or portion of
179 such covenant or restriction is approved by at least two-thirds
180 of the members of the board of directors of an incorporated
181 homeowners’ association at a meeting for which a notice, stating
182 the meeting’s time and place and containing the statement of
183 marketable title action described in s. 712.06(1)(b), was mailed
184 or hand delivered to members of the homeowners’ association at
185 least 7 days before such meeting. The property owners’
186 homeowners’ association or clerk of the circuit court is not
187 required to provide additional notice pursuant to s. 712.06(3).
188 The preceding sentence is intended to clarify existing law.
189 (4)(2) It is shall not be necessary for the owner of the
190 marketable record title, as described in s. 712.02 herein
191 defined, to file a notice to protect his or her marketable
192 record title.
193 Section 8. Subsections (1) and (3) of section 712.06,
194 Florida Statutes, are amended to read:
195 712.06 Contents of notice; recording and indexing.—
196 (1) To be effective, the notice referred to in s. 712.05,
197 other than the summary notice referred to in s. 712.05(2)(b),
198 must shall contain:
199 (a) The name or description and mailing address of the
200 claimant or the property owners’ homeowners’ association
201 desiring to preserve any covenant or restriction and the name
202 and particular post office address of the person filing the
203 claim or the homeowners’ association.
204 (b) The name and mailing post office address of an owner,
205 or the name and mailing post office address of the person in
206 whose name the said property is assessed on the last completed
207 tax assessment roll of the county at the time of filing, who,
208 for purpose of such notice, shall be deemed to be an owner;
209 provided, however, if a property owners’ homeowners’ association
210 is filing the notice, then the requirements of this paragraph
211 may be satisfied by attaching to and recording with the notice
212 an affidavit executed by the appropriate member of the board of
213 directors of the property owners’ homeowners’ association
214 affirming that the board of directors of the property owners’
215 homeowners’ association caused a statement in substantially the
216 following form to be mailed or hand delivered to the members of
217 that property owners’ homeowners’ association:
218
219 STATEMENT OF MARKETABLE TITLE ACTION
220
221 The [name of property owners’ homeowners’ association] (the
222 “Association”) has taken action to ensure that the [name of
223 declaration, covenant, or restriction], recorded in Official
224 Records Book ...., Page ...., of the public records of ....
225 County, Florida, as may be amended from time to time, currently
226 burdening the property of each and every member of the
227 Association, retains its status as the source of marketable
228 title with regard to the affected real property the transfer of
229 a member’s residence. To this end, the Association shall cause
230 the notice required by chapter 712, Florida Statutes, to be
231 recorded in the public records of .... County, Florida. Copies
232 of this notice and its attachments are available through the
233 Association pursuant to the Association’s governing documents
234 regarding official records of the Association.
235
236 (c) A full and complete description of all land affected by
237 such notice, which description shall be set forth in particular
238 terms and not by general reference, but if said claim is founded
239 upon a recorded instrument or a covenant or a restriction, then
240 the description in such notice may be the same as that contained
241 in such recorded instrument or covenant or restriction, provided
242 the same shall be sufficient to identify the property.
243 (d) A statement of the claim showing the nature,
244 description, and extent of such claim or other right subject to
245 extinguishment under this chapter or, in the case of a covenant
246 or restriction, a copy of the covenant or restriction, except
247 that it is shall not be necessary to show the amount of any
248 claim for money or the terms of payment.
249 (e) If such claim or other right subject to extinguishment
250 under this chapter is based upon an instrument of record or a
251 recorded covenant or restriction, such instrument of record or
252 recorded covenant or restriction shall be deemed sufficiently
253 described to identify the same if the notice includes a
254 reference to the book and page in which the same is recorded.
255 (f) Such notice shall be acknowledged in the same manner as
256 deeds are acknowledged for record.
257 (3) The person providing the notice referred to in s.
258 712.05, other than a notice for preservation of a community
259 covenant or restriction, shall:
260 (a) Cause the clerk of the circuit court to mail by
261 registered or certified mail to the purported owner of said
262 property, as stated in such notice, a copy thereof and shall
263 enter on the original, before recording the same, a certificate
264 showing such mailing. For preparing the certificate, the
265 claimant shall pay to the clerk the service charge as prescribed
266 in s. 28.24(8) and the necessary costs of mailing, in addition
267 to the recording charges as prescribed in s. 28.24(12). If the
268 notice names purported owners having more than one address, the
269 person filing the same shall furnish a true copy for each of the
270 several addresses stated, and the clerk shall send one such copy
271 to the purported owners named at each respective address. Such
272 certificate shall be sufficient if the same reads substantially
273 as follows:
274
275 I hereby certify that I did on this ...., mail by
276 registered (or certified) mail a copy of the foregoing notice to
277 each of the following at the address stated:
278
279 ...(Clerk of the circuit court)...
280 of .... County, Florida,
281 By...(Deputy clerk)...
282
283 The clerk of the circuit court is not required to mail to the
284 purported owner of such property any such notice that pertains
285 solely to the preserving of any covenant or restriction or any
286 portion of a covenant or restriction; or
287 (b) Publish once a week, for 2 consecutive weeks, the
288 notice referred to in s. 712.05, with the official record book
289 and page number in which such notice was recorded, in a
290 newspaper as defined in chapter 50 in the county in which the
291 property is located.
292 Section 9. Section 712.11, Florida Statutes, is amended to
293 read:
294 712.11 Covenant revitalization.—A property owners’
295 homeowners’ association not otherwise subject to chapter 720 may
296 use the procedures set forth in ss. 720.403-720.407 to revive
297 covenants that have lapsed under the terms of this chapter.
298 Section 10. Section 712.12, Florida Statutes, is created to
299 read:
300 712.12 Covenant or restriction revitalization by parcel
301 owners not subject to chapter 720.—
302 (1) As used in this section, the term:
303 (a) “Community” means the real property that is subject to
304 a covenant or restriction that is recorded in the county where
305 the property is located.
306 (b) “Covenant or restriction” means any agreement or
307 limitation imposed by a private party and not required by a
308 governmental agency as a condition of a development permit, as
309 defined in s. 163.3164, which is contained in a document
310 recorded in the public records of the county in which a parcel
311 is located and which subjects the parcel to any use restriction
312 that may be enforced by a parcel owner.
313 (c) “Parcel” means real property that is used for
314 residential purposes and that is subject to exclusive ownership
315 and any covenant or restriction that may be enforced by a parcel
316 owner.
317 (d) “Parcel owner” means the record owner of legal title to
318 a parcel.
319 (2) The parcel owners of a community not subject to ch. 720
320 may use the procedures set forth in ss. 720.403-720.407 to
321 revive covenants or restrictions that have lapsed under the
322 terms of this chapter, except:
323 (a) A reference to a homeowners’ association or articles of
324 incorporation or bylaws of a homeowners’ association under ss.
325 720.403-720.407 is not required to revive the covenants or
326 restrictions.
327 (b) The approval required under s. 720.405(6) must be in
328 writing, and not at a meeting.
329 (c) The requirements under s. 720.407(2) may be satisfied
330 by having the organizing committee execute the revived covenants
331 or restrictions in the name of the community.
332 (d) The indexing requirements under s. 720.407(3) may be
333 satisfied by indexing the community name in the covenants or
334 restrictions as the grantee and the parcel owners as the
335 grantors.
336 (3) With respect to any parcel that has ceased to be
337 governed by covenants or restrictions as of October 1, 2017, the
338 parcel owner may commence an action by October 1, 2018, for a
339 judicial determination that the covenants or restrictions did
340 not govern that parcel as of October 1, 2017, and that any
341 revitalization of such covenants or restrictions as to that
342 parcel would unconstitutionally deprive the parcel owner of
343 rights or property.
344 (4) Revived covenants or restrictions that are implemented
345 pursuant to this section do not apply to or affect the rights of
346 the parcel owner which are recognized by any court order or
347 judgment in any action commenced by October 1, 2018, and any
348 such rights so recognized may not be subsequently altered by
349 revived covenants or restrictions implemented under this section
350 without the consent of the affected parcel owner.
351 Section 11. Paragraph (e) is added to subsection (2) of
352 section 720.303, Florida Statutes, to read:
353 720.303 Association powers and duties; meetings of board;
354 official records; budgets; financial reporting; association
355 funds; recalls.—
356 (2) BOARD MEETINGS.—
357 (e) At the first board meeting, excluding the
358 organizational meeting, which follows the annual meeting of the
359 members, the board shall consider the desirability of filing
360 notices to preserve the covenants or restrictions affecting the
361 community or association from extinguishment under the
362 Marketable Record Title Act, chapter 712, and to authorize and
363 direct the appropriate officer to file notice in accordance with
364 s. 720.3032.
365 Section 12. Section 720.3032, Florida Statutes, is created
366 to read:
367 720.3032 Notice of association information; preservation
368 from Marketable Record Title Act.—
369 (1) Not less than once every 5 years, each association
370 shall record in the official records of each county in which the
371 community is located a notice specifying:
372 (a) The legal name of the association.
373 (b) The mailing and physical addresses of the association.
374 (c) The names of the affected subdivision plats and
375 condominiums or, if not applicable, the common name of the
376 community.
377 (d) The name, address, and telephone number for the current
378 community association management company or community
379 association manager, if any.
380 (e) Indication as to whether the association desires to
381 preserve the covenants or restrictions affecting the community
382 or association from extinguishment under the Marketable Record
383 Title Act, chapter 712.
384 (f) A listing by name and recording information of those
385 covenants or restrictions affecting the community which the
386 association desires to be preserved from extinguishment.
387 (g) The legal description of the community affected by the
388 covenants or restrictions, which may be satisfied by a reference
389 to a recorded plat.
390 (h) The signature of a duly authorized officer of the
391 association, acknowledged in the same manner as deeds are
392 acknowledged for record.
393 (2) Recording a document in substantially the following
394 form satisfies the notice obligation and constitutes a summary
395 notice as specified in s. 712.05(2)(b) sufficient to preserve
396 and protect the referenced covenants and restrictions from
397 extinguishment under the Marketable Record Title Act, chapter
398 712.
399
400 Notice of ...(name of association)... under s. 720.3032, Florida
401 Statutes, and notice to preserve and protect covenants and
402 restrictions from extinguishment under the Marketable Record
403 Title Act, chapter 712, Florida Statutes.
404
405 Instructions to recorder: Please index both the legal name
406 of the association and the names shown in item 3.
407 1. Legal name of association: ....
408 2. Mailing and physical addresses of association: .... ....
409 3. Names of the subdivision plats, or, if none, common name
410 of community: ....
411 4. Name, address, and telephone number for management
412 company, if any: ................
413 5. This notice does .... does not .... constitute a notice
414 to preserve and protect covenants or restrictions from
415 extinguishment under the Marketable Record Title Act.
416 6. The following covenants or restrictions affecting the
417 community which the association desires to be preserved from
418 extinguishment:
419 ...(Name of instrument)...
420 ...(Official Records Book where recorded & page)...
421 ...(List of instruments)...
422 ...(List of recording information)...
423 7. The legal description of the community affected by the
424 listed covenants or restrictions is: ...(Legal description,
425 which may be satisfied by reference to a recorded plat)...
426 This notice is filed on behalf of ...(Name of
427 association)... as of ...(Date)....
428 ...(Name of association)...
429
430 By: ....
431 ...(Name of individual officer)...
432 ...(Title of officer)...
433 ...(Notary acknowledgment)...
434
435 (3) The failure to file one or more notices does not affect
436 the validity or enforceability of any covenant or restriction
437 nor in any way alter the remaining time before extinguishment by
438 the Marketable Record Title Act, chapter 712.
439 (4) A copy of the notice, as filed, must be included as
440 part of the next notice of meeting or other mailing sent to all
441 members.
442 (5) The original signed notice must be recorded in the
443 official records of the clerk of the circuit court or other
444 recorder for the county.
445 Section 13. Section 702.09, Florida Statutes, is amended to
446 read:
447 702.09 Definitions.—For the purposes of ss. 702.07 and
448 702.08, the words “decree of foreclosure” shall include a
449 judgment or order rendered or passed in the foreclosure
450 proceedings in which the decree of foreclosure shall be
451 rescinded, vacated, and set aside; the word “mortgage” shall
452 mean any written instrument securing the payment of money or
453 advances and includes liens to secure payment of assessments
454 arising under chapters 718 and 719 and liens created pursuant to
455 the recorded covenants of a property owners’ homeowners’
456 association as defined in s. 712.01; the word “debt” shall
457 include promissory notes, bonds, and all other written
458 obligations given for the payment of money; the words
459 “foreclosure proceedings” shall embrace every action in the
460 circuit or county courts of this state wherein it is sought to
461 foreclose a mortgage and sell the property covered by the same;
462 and the word “property” shall mean and include both real and
463 personal property.
464 Section 14. Subsection (1) of section 702.10, Florida
465 Statutes, is amended to read:
466 702.10 Order to show cause; entry of final judgment of
467 foreclosure; payment during foreclosure.—
468 (1) A lienholder may request an order to show cause for the
469 entry of final judgment in a foreclosure action. For purposes of
470 this section, the term “lienholder” includes the plaintiff and a
471 defendant to the action who holds a lien encumbering the
472 property or a defendant who, by virtue of its status as a
473 condominium association, cooperative association, or property
474 owners’ homeowners’ association, may file a lien against the
475 real property subject to foreclosure. Upon filing, the court
476 shall immediately review the request and the court file in
477 chambers and without a hearing. If, upon examination of the
478 court file, the court finds that the complaint is verified,
479 complies with s. 702.015, and alleges a cause of action to
480 foreclose on real property, the court shall promptly issue an
481 order directed to the other parties named in the action to show
482 cause why a final judgment of foreclosure should not be entered.
483 (a) The order shall:
484 1. Set the date and time for a hearing to show cause. The
485 date for the hearing may not occur sooner than the later of 20
486 days after service of the order to show cause or 45 days after
487 service of the initial complaint. When service is obtained by
488 publication, the date for the hearing may not be set sooner than
489 30 days after the first publication.
490 2. Direct the time within which service of the order to
491 show cause and the complaint must be made upon the defendant.
492 3. State that the filing of defenses by a motion, a
493 responsive pleading, an affidavit, or other papers before the
494 hearing to show cause that raise a genuine issue of material
495 fact which would preclude the entry of summary judgment or
496 otherwise constitute a legal defense to foreclosure shall
497 constitute cause for the court not to enter final judgment.
498 4. State that a defendant has the right to file affidavits
499 or other papers before the time of the hearing to show cause and
500 may appear personally or by way of an attorney at the hearing.
501 5. State that, if a defendant files defenses by a motion, a
502 verified or sworn answer, affidavits, or other papers or appears
503 personally or by way of an attorney at the time of the hearing,
504 the hearing time will be used to hear and consider whether the
505 defendant’s motion, answer, affidavits, other papers, and other
506 evidence and argument as may be presented by the defendant or
507 the defendant’s attorney raise a genuine issue of material fact
508 which would preclude the entry of summary judgment or otherwise
509 constitute a legal defense to foreclosure. The order shall also
510 state that the court may enter an order of final judgment of
511 foreclosure at the hearing and order the clerk of the court to
512 conduct a foreclosure sale.
513 6. State that, if a defendant fails to appear at the
514 hearing to show cause or fails to file defenses by a motion or
515 by a verified or sworn answer or files an answer not contesting
516 the foreclosure, such defendant may be considered to have waived
517 the right to a hearing, and in such case, the court may enter a
518 default against such defendant and, if appropriate, a final
519 judgment of foreclosure ordering the clerk of the court to
520 conduct a foreclosure sale.
521 7. State that if the mortgage provides for reasonable
522 attorney fees and the requested attorney fees do not exceed 3
523 percent of the principal amount owed at the time of filing the
524 complaint, it is unnecessary for the court to hold a hearing or
525 adjudge the requested attorney fees to be reasonable.
526 8. Attach the form of the proposed final judgment of
527 foreclosure which the movant requests the court to enter at the
528 hearing on the order to show cause.
529 9. Require the party seeking final judgment to serve a copy
530 of the order to show cause on the other parties in the following
531 manner:
532 a. If a party has been served pursuant to chapter 48 with
533 the complaint and original process, or the other party is the
534 plaintiff in the action, service of the order to show cause on
535 that party may be made in the manner provided in the Florida
536 Rules of Civil Procedure.
537 b. If a defendant has not been served pursuant to chapter
538 48 with the complaint and original process, the order to show
539 cause, together with the summons and a copy of the complaint,
540 shall be served on the party in the same manner as provided by
541 law for original process.
542
543 Any final judgment of foreclosure entered under this subsection
544 is for in rem relief only. This subsection does not preclude the
545 entry of a deficiency judgment where otherwise allowed by law.
546 The Legislature intends that this alternative procedure may run
547 simultaneously with other court procedures.
548 (b) The right to be heard at the hearing to show cause is
549 waived if a defendant, after being served as provided by law
550 with an order to show cause, engages in conduct that clearly
551 shows that the defendant has relinquished the right to be heard
552 on that order. The defendant’s failure to file defenses by a
553 motion or by a sworn or verified answer, affidavits, or other
554 papers or to appear personally or by way of an attorney at the
555 hearing duly scheduled on the order to show cause presumptively
556 constitutes conduct that clearly shows that the defendant has
557 relinquished the right to be heard. If a defendant files
558 defenses by a motion, a verified answer, affidavits, or other
559 papers or presents evidence at or before the hearing which raise
560 a genuine issue of material fact which would preclude entry of
561 summary judgment or otherwise constitute a legal defense to
562 foreclosure, such action constitutes cause and precludes the
563 entry of a final judgment at the hearing to show cause.
564 (c) In a mortgage foreclosure proceeding, when a final
565 judgment of foreclosure has been entered against the mortgagor
566 and the note or mortgage provides for the award of reasonable
567 attorney fees, it is unnecessary for the court to hold a hearing
568 or adjudge the requested attorney fees to be reasonable if the
569 fees do not exceed 3 percent of the principal amount owed on the
570 note or mortgage at the time of filing, even if the note or
571 mortgage does not specify the percentage of the original amount
572 that would be paid as liquidated damages.
573 (d) If the court finds that all defendants have waived the
574 right to be heard as provided in paragraph (b), the court shall
575 promptly enter a final judgment of foreclosure without the need
576 for further hearing if the plaintiff has shown entitlement to a
577 final judgment and upon the filing with the court of the
578 original note, satisfaction of the conditions for establishment
579 of a lost note, or upon a showing to the court that the
580 obligation to be foreclosed is not evidenced by a promissory
581 note or other negotiable instrument. If the court finds that a
582 defendant has not waived the right to be heard on the order to
583 show cause, the court shall determine whether there is cause not
584 to enter a final judgment of foreclosure. If the court finds
585 that the defendant has not shown cause, the court shall promptly
586 enter a judgment of foreclosure. If the time allotted for the
587 hearing is insufficient, the court may announce at the hearing a
588 date and time for the continued hearing. Only the parties who
589 appear, individually or through an attorney, at the initial
590 hearing must be notified of the date and time of the continued
591 hearing.
592 Section 15. Section 712.095, Florida Statutes, is amended
593 to read:
594 712.095 Notice required by July 1, 1983.—Any person whose
595 interest in land is derived from an instrument or court
596 proceeding recorded subsequent to the root of title, which
597 instrument or proceeding did not contain a description of the
598 land as specified by s. 712.01(7) s. 712.01(3), and whose
599 interest had not been extinguished prior to July 1, 1981, shall
600 have until July 1, 1983, to file a notice in accordance with s.
601 712.06 to preserve the interest.
602 Section 16. Section 720.403, Florida Statutes, is amended
603 to read:
604 720.403 Preservation of residential communities; revival of
605 declaration of covenants.—
606 (1) Consistent with required and optional elements of local
607 comprehensive plans and other applicable provisions of the
608 Community Planning Act, property owners homeowners are
609 encouraged to preserve existing residential and other
610 communities, promote available and affordable housing, protect
611 structural and aesthetic elements of their residential
612 community, and, as applicable, maintain roads and streets,
613 easements, water and sewer systems, utilities, drainage
614 improvements, conservation and open areas, recreational
615 amenities, and other infrastructure and common areas that serve
616 and support the residential community by the revival of a
617 previous declaration of covenants and other governing documents
618 that may have ceased to govern some or all parcels in the
619 community.
620 (2) In order to preserve a residential community and the
621 associated infrastructure and common areas for the purposes
622 described in this section, the parcel owners in a community that
623 was previously subject to a declaration of covenants that has
624 ceased to govern one or more parcels in the community may revive
625 the declaration and the homeowners’ association for the
626 community upon approval by the parcel owners to be governed
627 thereby as provided in this act, and upon approval of the
628 declaration and the other governing documents for the
629 association by the Department of Economic Opportunity in a
630 manner consistent with this act.
631 (3) Part III of this chapter is intended to provide
632 mechanisms for the revitalization of covenants or restrictions
633 for all types of communities and property associations and is
634 not limited to residential communities.
635 Section 17. Section 720.404, Florida Statutes, is amended
636 to read:
637 720.404 Eligible residential communities; requirements for
638 revival of declaration.—Parcel owners in a community are
639 eligible to seek approval from the Department of Economic
640 Opportunity to revive a declaration of covenants under this act
641 if all of the following requirements are met:
642 (1) All parcels to be governed by the revived declaration
643 must have been once governed by a previous declaration that has
644 ceased to govern some or all of the parcels in the community;
645 (2) The revived declaration must be approved in the manner
646 provided in s. 720.405(6); and
647 (3) The revived declaration may not contain covenants that
648 are more restrictive on the parcel owners than the covenants
649 contained in the previous declaration, except that the
650 declaration may:
651 (a) Have an effective term of longer duration than the term
652 of the previous declaration;
653 (b) Omit restrictions contained in the previous
654 declaration;
655 (c) Govern fewer than all of the parcels governed by the
656 previous declaration;
657 (d) Provide for amendments to the declaration and other
658 governing documents; and
659 (e) Contain provisions required by this chapter for new
660 declarations that were not contained in the previous
661 declaration.
662 Section 18. Subsections (1), (3), (5), and (6) of section
663 720.405, Florida Statutes, are amended to read:
664 720.405 Organizing committee; parcel owner approval.—
665 (1) The proposal to revive a declaration of covenants and
666 an a homeowners’ association for a community under the terms of
667 this act shall be initiated by an organizing committee
668 consisting of not less than three parcel owners located in the
669 community that is proposed to be governed by the revived
670 declaration. The name, address, and telephone number of each
671 member of the organizing committee must be included in any
672 notice or other document provided by the committee to parcel
673 owners to be affected by the proposed revived declaration.
674 (3) The organizing committee shall prepare the full text of
675 the proposed articles of incorporation and bylaws of the revived
676 homeowners’ association to be submitted to the parcel owners for
677 approval, unless the association is then an existing
678 corporation, in which case the organizing committee shall
679 prepare the existing articles of incorporation and bylaws to be
680 submitted to the parcel owners.
681 (5) A copy of the complete text of the proposed revised
682 declaration of covenants, the proposed new or existing articles
683 of incorporation and bylaws of the homeowners’ association, and
684 a graphic depiction of the property to be governed by the
685 revived declaration shall be presented to all of the affected
686 parcel owners by mail or hand delivery not less than 14 days
687 before the time that the consent of the affected parcel owners
688 to the proposed governing documents is sought by the organizing
689 committee.
690 (6) A majority of the affected parcel owners must agree in
691 writing to the revived declaration of covenants and governing
692 documents of the homeowners’ association or approve the revived
693 declaration and governing documents by a vote at a meeting of
694 the affected parcel owners noticed and conducted in the manner
695 prescribed by s. 720.306. Proof of notice of the meeting to all
696 affected owners of the meeting and the minutes of the meeting
697 recording the votes of the property owners shall be certified by
698 a court reporter or an attorney licensed to practice in the
699 state.
700 Section 19. Subsection (3) of section 720.407, Florida
701 Statutes, is amended to read:
702 720.407 Recording; notice of recording; applicability and
703 effective date.—
704 (3) The recorded documents shall include the full text of
705 the approved declaration of covenants, the articles of
706 incorporation and bylaws of the homeowners’ association, the
707 letter of approval by the department, and the legal description
708 of each affected parcel of property. For purposes of chapter
709 712, the association is deemed to be and shall be indexed as the
710 grantee in a title transaction and the parcel owners named in
711 the revived declaration are deemed to be and shall be indexed as
712 the grantors in the title transaction.
713 Section 20. Notwithstanding this act, any person claiming
714 an interest or other right in land which would be extinguished
715 as a result of this act, including any interests or other rights
716 where the 30-year period immediately following the effective
717 date of the root of title has already passed, may preserve such
718 interest from extinguishment pursuant to this act by filing for
719 record a written notice in accordance with s. 712.06, Florida
720 Statutes, within 1 year after the effective date of this act.
721 Section 21. This act shall take effect October 1, 2017.
722
723 ================= T I T L E A M E N D M E N T ================
724 And the title is amended as follows:
725 Delete everything before the enacting clause
726 and insert:
727 A bill to be entitled
728 An act relating to real property; creating s. 702.12,
729 F.S.; authorizing lienholders to use certain documents
730 as an admission in an action to foreclose a mortgage;
731 providing that submission of certain documents in a
732 foreclosure action creates a rebuttable presumption
733 that the defendant has waived any defenses to the
734 foreclosure; requiring a court to take judicial notice
735 of final orders entered in bankruptcy cases; providing
736 construction; providing applicability; amending ss.
737 125.022 and 166.033, F.S.; prohibiting a county or
738 municipality from delegating its police power to a
739 third party by restriction, covenant, or otherwise;
740 providing that the imposition by a county or
741 municipality of a recorded or unrecorded restriction
742 or covenant as a condition of a county’s or
743 municipality’s approval or issuance of a development
744 permit does not preclude the county or municipality
745 from exercising its police power to later amend,
746 release, or terminate the restriction or covenant;
747 providing that any such amendment, release, or
748 termination of the restriction or covenant must follow
749 specified procedural requirements; amending s. 712.04,
750 F.S.; providing that a marketable record title is free
751 and clear of all covenants or restrictions, the
752 existence of which depends upon any zoning
753 requirement, building or development permit; providing
754 that all such covenants or restrictions are declared
755 to be null and void; providing construction; creating
756 s. 712.001, F.S.; providing a short title; amending s.
757 712.01, F.S.; defining and redefining terms; amending
758 s. 712.05, F.S.; revising the notice filing
759 requirements for a person claiming an interest in land
760 and other rights; authorizing a property owners’
761 association to preserve and protect certain covenants
762 or restrictions from extinguishment, subject to
763 specified requirements; providing that a failure in
764 indexing does not affect the validity of the notice;
765 extending the length of time certain covenants or
766 restrictions are preserved; deleting a provision
767 requiring a two-thirds vote by members of an
768 incorporated homeowners’ association to file certain
769 notices; conforming provisions to changes made by the
770 act; amending s. 712.06, F.S.; exempting a specified
771 summary notice from certain notice content
772 requirements; revising the contents required to be
773 specified by certain notices; conforming provisions to
774 changes made by the act; amending s. 712.11, F.S.;
775 conforming provisions to changes made by the act;
776 creating s. 712.12, F.S.; defining terms; authorizing
777 the parcel owners of a community not subject to ch.
778 720, F.S., to use specified procedures to revive
779 certain covenants or restrictions, subject to certain
780 exceptions and requirements; authorizing a parcel
781 owner to commence an action by a specified date under
782 certain circumstances for a judicial determination
783 that the covenants or restrictions did not govern that
784 parcel as of a specified date and that any
785 revitalization of such covenants or restrictions as to
786 that parcel would unconstitutionally deprive the
787 parcel owner of rights or property; providing
788 applicability; amending s. 720.303, F.S.; requiring a
789 board to take up certain provisions relating to notice
790 filings at the first board meeting; creating s.
791 720.3032, F.S.; providing recording requirements for
792 an association; providing a document form for
793 recording by an association to preserve certain
794 covenants or restrictions; providing that failure to
795 file one or more notices does not affect the validity
796 or enforceability of a covenant or restriction or
797 alter the time before extinguishment under certain
798 circumstances; requiring a copy of the filed notice to
799 be sent to all members; requiring the original signed
800 notice to be recorded with the clerk of the circuit
801 court or other recorder; amending ss. 702.09 and
802 702.10, F.S.; conforming provisions to changes made by
803 the act; amending s. 712.095, F.S.; conforming a
804 cross-reference; amending ss. 720.403, 720.404,
805 720.405, and 720.407, F.S.; conforming provisions to
806 changes made by the act; authorizing persons to
807 preserve certain interest or rights in property by
808 filing a specified notice; providing an effective
809 date.