Florida Senate - 2022                                    SB 1364
       
       
        
       By Senator Torres
       
       
       
       
       
       15-01727-22                                           20221364__
    1                        A bill to be entitled                      
    2         An act relating to levying of fines by homeowners’
    3         associations; amending s. 720.305, F.S.; removing the
    4         authority of a homeowners’ association to levy fines;
    5         conforming provisions to changes made by the act;
    6         amending ss. 720.306 and 720.311, F.S.; conforming
    7         provisions to changes made by the act; providing an
    8         effective date.
    9          
   10  Be It Enacted by the Legislature of the State of Florida:
   11  
   12         Section 1. Section 720.305, Florida Statutes, is amended to
   13  read:
   14         720.305 Obligations of members; remedies at law or in
   15  equity; levy of fines and suspension of use rights.—
   16         (1) Each member and the member’s tenants, guests, and
   17  invitees, and each association, are governed by, and must comply
   18  with, this chapter, the governing documents of the community,
   19  and the rules of the association. Actions at law or in equity,
   20  or both, to redress alleged failure or refusal to comply with
   21  these provisions may be brought by the association or by any
   22  member against:
   23         (a) The association;
   24         (b) A member;
   25         (c) Any director or officer of an association who willfully
   26  and knowingly fails to comply with these provisions; and
   27         (d) Any tenants, guests, or invitees occupying a parcel or
   28  using the common areas.
   29  
   30  The prevailing party in any such litigation is entitled to
   31  recover reasonable attorney fees and costs. A member prevailing
   32  in an action between the association and the member under this
   33  section, in addition to recovering his or her reasonable
   34  attorney fees, may recover additional amounts as determined by
   35  the court to be necessary to reimburse the member for his or her
   36  share of assessments levied by the association to fund its
   37  expenses of the litigation. This relief does not exclude other
   38  remedies provided by law. This section does not deprive any
   39  person of any other available right or remedy.
   40         (2) An association may levy reasonable fines. A fine may
   41  not exceed $100 per violation against any member or any member’s
   42  tenant, guest, or invitee for the failure of the owner of the
   43  parcel or its occupant, licensee, or invitee to comply with any
   44  provision of the declaration, the association bylaws, or
   45  reasonable rules of the association unless otherwise provided in
   46  the governing documents. A fine may be levied by the board for
   47  each day of a continuing violation, with a single notice and
   48  opportunity for hearing, except that the fine may not exceed
   49  $1,000 in the aggregate unless otherwise provided in the
   50  governing documents. A fine of less than $1,000 may not become a
   51  lien against a parcel. In any action to recover a fine, the
   52  prevailing party is entitled to reasonable attorney fees and
   53  costs from the nonprevailing party as determined by the court.
   54         (a) An association may suspend, for a reasonable period of
   55  time, the right of a member, or a member’s tenant, guest, or
   56  invitee, to use common areas and facilities for the failure of
   57  the owner of the parcel or its occupant, licensee, or invitee to
   58  comply with any provision of the declaration, the association
   59  bylaws, or reasonable rules of the association. This paragraph
   60  does not apply to that portion of common areas used to provide
   61  access or utility services to the parcel. A suspension may not
   62  prohibit an owner or tenant of a parcel from having vehicular
   63  and pedestrian ingress to and egress from the parcel, including,
   64  but not limited to, the right to park.
   65         (b) A fine or suspension levied by the board of
   66  administration may not be imposed unless the board first
   67  provides at least 14 days’ notice to the parcel owner and, if
   68  applicable, any occupant, licensee, or invitee of the parcel
   69  owner, sought to be fined or suspended and an opportunity for a
   70  hearing before a committee of at least three members appointed
   71  by the board who are not officers, directors, or employees of
   72  the association, or the spouse, parent, child, brother, or
   73  sister of an officer, director, or employee. If the committee,
   74  by majority vote, does not approve a proposed fine or
   75  suspension, the proposed fine or suspension may not be imposed.
   76  The role of the committee is limited to determining whether to
   77  confirm or reject the fine or suspension levied by the board. If
   78  the proposed fine or suspension levied by the board is approved
   79  by the committee, the fine payment is due 5 days after notice of
   80  the approved fine is provided to the parcel owner and, if
   81  applicable, to any occupant, licensee, or invitee of the parcel
   82  owner. The association must provide written notice of such fine
   83  or suspension by mail or hand delivery to the parcel owner and,
   84  if applicable, to any occupant, licensee, or invitee of the
   85  parcel owner.
   86         (3) If a member is more than 90 days delinquent in paying
   87  any fee, fine, or other monetary obligation due to the
   88  association, the association may suspend the rights of the
   89  member, or the member’s tenant, guest, or invitee, to use common
   90  areas and facilities until the fee, fine, or other monetary
   91  obligation is paid in full. This subsection does not apply to
   92  that portion of common areas used to provide access or utility
   93  services to the parcel. A suspension may not prohibit an owner
   94  or tenant of a parcel from having vehicular and pedestrian
   95  ingress to and egress from the parcel, including, but not
   96  limited to, the right to park. The notice and hearing
   97  requirements under subsection (2) do not apply to a suspension
   98  imposed under this subsection.
   99         (4) An association may suspend the voting rights of a
  100  parcel or member for the nonpayment of any fee, fine, or other
  101  monetary obligation due to the association that is more than 90
  102  days delinquent. A voting interest or consent right allocated to
  103  a parcel or member which has been suspended by the association
  104  shall be subtracted from the total number of voting interests in
  105  the association, which shall be reduced by the number of
  106  suspended voting interests when calculating the total percentage
  107  or number of all voting interests available to take or approve
  108  any action, and the suspended voting interests shall not be
  109  considered for any purpose, including, but not limited to, the
  110  percentage or number of voting interests necessary to constitute
  111  a quorum, the percentage or number of voting interests required
  112  to conduct an election, or the percentage or number of voting
  113  interests required to approve an action under this chapter or
  114  pursuant to the governing documents. The notice and hearing
  115  requirements under subsection (2) do not apply to a suspension
  116  imposed under this subsection. The suspension ends upon full
  117  payment of all obligations currently due or overdue to the
  118  association.
  119         (5) All suspensions imposed pursuant to subsection (3) or
  120  subsection (4) must be approved at a properly noticed board
  121  meeting. Upon approval, the association must notify the parcel
  122  owner and, if applicable, the parcel’s occupant, licensee, or
  123  invitee by mail or hand delivery.
  124         (6) The suspensions permitted by paragraph (2)(a) and
  125  subsections (3) and (4) apply to a member and, when appropriate,
  126  the member’s tenants, guests, or invitees, even if the
  127  delinquency or failure that resulted in the suspension arose
  128  from less than all of the multiple parcels owned by a member.
  129         Section 2. Paragraph (b) of subsection (9) of section
  130  720.306, Florida Statutes, is amended to read:
  131         720.306 Meetings of members; voting and election
  132  procedures; amendments.—
  133         (9) ELECTIONS AND BOARD VACANCIES.—
  134         (b) A person who is delinquent in the payment of any fee,
  135  fine, or other monetary obligation to the association on the day
  136  that he or she could last nominate himself or herself or be
  137  nominated for the board may not seek election to the board, and
  138  his or her name shall not be listed on the ballot. A person
  139  serving as a board member who becomes more than 90 days
  140  delinquent in the payment of any fee, fine, or other monetary
  141  obligation to the association shall be deemed to have abandoned
  142  his or her seat on the board, creating a vacancy on the board to
  143  be filled according to law. For purposes of this paragraph, the
  144  term “any fee, fine, or other monetary obligation” means any
  145  delinquency to the association with respect to any parcel. A
  146  person who has been convicted of any felony in this state or in
  147  a United States District or Territorial Court, or has been
  148  convicted of any offense in another jurisdiction which would be
  149  considered a felony if committed in this state, may not seek
  150  election to the board and is not eligible for board membership
  151  unless such felon’s civil rights have been restored for at least
  152  5 years as of the date on which such person seeks election to
  153  the board. The validity of any action by the board is not
  154  affected if it is later determined that a person was ineligible
  155  to seek election to the board or that a member of the board is
  156  ineligible for board membership.
  157         Section 3. Paragraph (a) of subsection (2) of section
  158  720.311, Florida Statutes, is amended to read:
  159         720.311 Dispute resolution.—
  160         (2)(a) Disputes between an association and a parcel owner
  161  regarding use of or changes to the parcel or the common areas
  162  and other covenant enforcement disputes, disputes regarding
  163  amendments to the association documents, disputes regarding
  164  meetings of the board and committees appointed by the board,
  165  membership meetings not including election meetings, and access
  166  to the official records of the association shall be the subject
  167  of a demand for presuit mediation served by an aggrieved party
  168  before the dispute is filed in court. Presuit mediation
  169  proceedings must be conducted in accordance with the applicable
  170  Florida Rules of Civil Procedure, and these proceedings are
  171  privileged and confidential to the same extent as court-ordered
  172  mediation. Disputes subject to presuit mediation under this
  173  section shall not include the collection of any assessment,
  174  fine, or other financial obligation, including attorney
  175  attorney’s fees and costs, claimed to be due or any action to
  176  enforce a prior mediation settlement agreement between the
  177  parties. Also, in any dispute subject to presuit mediation under
  178  this section where emergency relief is required, a motion for
  179  temporary injunctive relief may be filed with the court without
  180  first complying with the presuit mediation requirements of this
  181  section. After any issues regarding emergency or temporary
  182  relief are resolved, the court may either refer the parties to a
  183  mediation program administered by the courts or require
  184  mediation under this section. An arbitrator or judge may not
  185  consider any information or evidence arising from the presuit
  186  mediation proceeding except in a proceeding to impose sanctions
  187  for failure to attend a presuit mediation session or to enforce
  188  a mediated settlement agreement. Persons who are not parties to
  189  the dispute may not attend the presuit mediation conference
  190  without the consent of all parties, except for counsel for the
  191  parties and a corporate representative designated by the
  192  association. When mediation is attended by a quorum of the
  193  board, such mediation is not a board meeting for purposes of
  194  notice and participation set forth in s. 720.303. An aggrieved
  195  party shall serve on the responding party a written demand to
  196  participate in presuit mediation in substantially the following
  197  form:
  198  
  199         STATUTORY OFFER TO PARTICIPATE
  200         IN PRESUIT MEDIATION
  201  
  202         The alleged aggrieved party, ................, hereby
  203         demands that ................, as the responding
  204         party, engage in mandatory presuit mediation in
  205         connection with the following disputes, which by
  206         statute are of a type that are subject to presuit
  207         mediation:
  208  
  209         (List specific nature of the dispute or disputes to be
  210         mediated and the authority supporting a finding of a
  211         violation as to each dispute.)
  212  
  213         Pursuant to section 720.311, Florida Statutes, this
  214         demand to resolve the dispute through presuit
  215         mediation is required before a lawsuit can be filed
  216         concerning the dispute. Pursuant to the statute, the
  217         parties are required to engage in presuit mediation
  218         with a neutral third-party mediator in order to
  219         attempt to resolve this dispute without court action,
  220         and the aggrieved party demands that you likewise
  221         agree to this process. If you fail to participate in
  222         the mediation process, suit may be brought against you
  223         without further warning.
  224  
  225         The process of mediation involves a supervised
  226         negotiation process in which a trained, neutral third
  227         party mediator meets with both parties and assists
  228         them in exploring possible opportunities for resolving
  229         part or all of the dispute. By agreeing to participate
  230         in presuit mediation, you are not bound in any way to
  231         change your position. Furthermore, the mediator has no
  232         authority to make any decisions in this matter or to
  233         determine who is right or wrong and merely acts as a
  234         facilitator to ensure that each party understands the
  235         position of the other party and that all options for
  236         reasonable settlement are fully explored.
  237  
  238         If an agreement is reached, it shall be reduced to
  239         writing and becomes a binding and enforceable
  240         commitment of the parties. A resolution of one or more
  241         disputes in this fashion avoids the need to litigate
  242         these issues in court. The failure to reach an
  243         agreement, or the failure of a party to participate in
  244         the process, results in the mediator declaring an
  245         impasse in the mediation, after which the aggrieved
  246         party may proceed to court on all outstanding,
  247         unsettled disputes. If you have failed or refused to
  248         participate in the entire mediation process, you will
  249         not be entitled to recover attorney’s fees, even if
  250         you prevail.
  251  
  252         The aggrieved party has selected and hereby lists five
  253         certified mediators who we believe to be neutral and
  254         qualified to mediate the dispute. You have the right
  255         to select any one of these mediators. The fact that
  256         one party may be familiar with one or more of the
  257         listed mediators does not mean that the mediator
  258         cannot act as a neutral and impartial facilitator. Any
  259         mediator who cannot act in this capacity is required
  260         ethically to decline to accept engagement. The
  261         mediators that we suggest, and their current hourly
  262         rates, are as follows:
  263  
  264         (List the names, addresses, telephone numbers, and
  265         hourly rates of the mediators. Other pertinent
  266         information about the background of the mediators may
  267         be included as an attachment.)
  268  
  269         You may contact the offices of these mediators to
  270         confirm that the listed mediators will be neutral and
  271         will not show any favoritism toward either party. The
  272         Florida Supreme Court can provide you a list of
  273         certified mediators.
  274  
  275         Unless otherwise agreed by the parties, section
  276         720.311(2)(b), Florida Statutes, requires that the
  277         parties share the costs of presuit mediation equally,
  278         including the fee charged by the mediator. An average
  279         mediation may require three to four hours of the
  280         mediator’s time, including some preparation time, and
  281         the parties would need to share equally the mediator’s
  282         fees as well as their own attorney’s fees if they
  283         choose to employ an attorney in connection with the
  284         mediation. However, use of an attorney is not required
  285         and is at the option of each party. The mediators may
  286         require the advance payment of some or all of the
  287         anticipated fees. The aggrieved party hereby agrees to
  288         pay or prepay one-half of the mediator’s estimated
  289         fees and to forward this amount or such other
  290         reasonable advance deposits as the mediator requires
  291         for this purpose. Any funds deposited will be returned
  292         to you if these are in excess of your share of the
  293         fees incurred.
  294  
  295         To begin your participation in presuit mediation to
  296         try to resolve the dispute and avoid further legal
  297         action, please sign below and clearly indicate which
  298         mediator is acceptable to you. We will then ask the
  299         mediator to schedule a mutually convenient time and
  300         place for the mediation conference to be held. The
  301         mediation conference must be held within ninety (90)
  302         days of this date, unless extended by mutual written
  303         agreement. In the event that you fail to respond
  304         within 20 days from the date of this letter, or if you
  305         fail to agree to at least one of the mediators that we
  306         have suggested or to pay or prepay to the mediator
  307         one-half of the costs involved, the aggrieved party
  308         will be authorized to proceed with the filing of a
  309         lawsuit against you without further notice and may
  310         seek an award of attorney’s fees or costs incurred in
  311         attempting to obtain mediation.
  312  
  313         Therefore, please give this matter your immediate
  314         attention. By law, your response must be mailed by
  315         certified mail, return receipt requested, and by
  316         first-class mail to the address shown on this demand.
  317  
  318         ........................
  319         ........................
  320  
  321         RESPONDING PARTY: YOUR SIGNATURE INDICATES YOUR
  322         AGREEMENT TO THAT CHOICE.
  323  
  324                        AGREEMENT TO MEDIATE                       
  325  
  326         The undersigned hereby agrees to participate in
  327         presuit mediation and agrees to attend a mediation
  328         conducted by the following mediator or mediators who
  329         are listed above as someone who would be acceptable to
  330         mediate this dispute:
  331  
  332         (List acceptable mediator or mediators.)
  333  
  334         I/we further agree to pay or prepay one-half of the
  335         mediator’s fees and to forward such advance deposits
  336         as the mediator may require for this purpose.
  337  
  338         ........................
  339         Signature of responding party #1
  340  
  341         ........................
  342         Telephone contact information
  343  
  344         ........................
  345         Signature and telephone contact information of responding
  346  party #2 (if applicable)(if property is owned by more than one
  347  person, all owners must sign)
  348         Section 4. This act shall take effect July 1, 2022.