Bill Text: FL S0266 | 2018 | Regular Session | Comm Sub
Bill Title: Covenants and Restrictions
Sponsorship: Partisan Bill (Republican 1)
Status: (Introduced - Dead) 2018-03-06 - Laid on Table, refer to HB 617 [S0266 Detail]
Download: Florida-2018-S0266-Comm_Sub.html
Florida Senate - 2018 CS for SB 266
By the Committee on Rules; and Senator Passidomo
595-03996-18 2018266c1
1 A bill to be entitled
2 An act relating to covenants and restrictions;
3 creating s. 712.001, F.S.; providing a short title;
4 amending s. 712.01, F.S.; defining and redefining
5 terms; amending s. 712.05, F.S.; revising the notice
6 filing requirements for a person claiming an interest
7 in land and other rights; authorizing a property
8 owners’ association to preserve and protect certain
9 covenants or restrictions from extinguishment, subject
10 to specified requirements; providing that a failure in
11 indexing does not affect the validity of the notice;
12 extending the length of time certain covenants or
13 restrictions are preserved; deleting a provision
14 requiring a two-thirds vote by members of an
15 incorporated homeowners’ association to file certain
16 notices; providing that a property owners’ association
17 or clerk of the circuit court is not required to
18 provide certain additional notice for a specified
19 notice that is filed; conforming provisions to changes
20 made by the act; amending s. 712.06, F.S.; exempting a
21 specified summary notice and amendment from certain
22 notice content requirements; revising the contents
23 required to be specified by certain notices;
24 conforming provisions to changes made by the act;
25 amending s. 712.11, F.S.; conforming provisions to
26 changes made by the act; creating s. 712.12, F.S.;
27 defining terms; authorizing the parcel owners of a
28 community not subject to a homeowners’ association to
29 use specified procedures to revive certain covenants
30 or restrictions, subject to certain exceptions and
31 requirements; authorizing a parcel owner to commence
32 an action by a specified date under certain
33 circumstances for a judicial determination that the
34 covenants or restrictions did not govern that parcel
35 as of a specified date and that any revitalization of
36 such covenants or restrictions as to that parcel would
37 unconstitutionally deprive the parcel owner of rights
38 or property; providing applicability; amending s.
39 720.303, F.S.; requiring a board to take up certain
40 provisions relating to notice filings at the first
41 board meeting; creating s. 720.3032, F.S.; requiring
42 any property owners’ association desiring to preserve
43 covenants from potential termination after a specified
44 period by certain operation to record in the official
45 records of each county in which the community is
46 located a notice subject to certain requirements;
47 providing a document form for recording by an
48 association to preserve certain covenants or
49 restrictions; requiring a copy of the filed notice to
50 be sent to all members; requiring the original signed
51 notice to be recorded with the clerk of the circuit
52 court or other recorder; amending ss. 702.09 and
53 702.10, F.S.; conforming provisions to changes made by
54 the act; amending s. 712.095, F.S.; conforming a
55 cross-reference; amending ss. 720.403, 720.404,
56 720.405, and 720.407, F.S.; conforming provisions to
57 changes made by the act; providing an effective date.
58
59 Be It Enacted by the Legislature of the State of Florida:
60
61 Section 1. Section 712.001, Florida Statutes, is created to
62 read:
63 712.001 Short title.—This chapter may be cited as the
64 “Marketable Record Title Act.”
65 Section 2. Section 712.01, Florida Statutes, is reordered
66 and amended to read:
67 712.01 Definitions.—As used in this chapter, the term law:
68 (1) “Community covenant or restriction” means any agreement
69 or limitation contained in a document recorded in the public
70 records of the county in which a parcel is located which:
71 (a) Subjects the parcel to any use restriction that may be
72 enforced by a property owners’ association; or
73 (b) Authorizes a property owners’ association to impose a
74 charge or assessment against the parcel or the parcel owner.
75 (4)(1) The term “Person” includes the as used herein
76 denotes singular or plural, natural or corporate, private or
77 governmental, including the state and any political subdivision
78 or agency thereof as the context for the use thereof requires or
79 denotes and including any property owners’ homeowners’
80 association.
81 (6)(2) “Root of title” means any title transaction
82 purporting to create or transfer the estate claimed by any
83 person and which is the last title transaction to have been
84 recorded at least 30 years before prior to the time when
85 marketability is being determined. The effective date of the
86 root of title is the date on which it was recorded.
87 (7)(3) “Title transaction” means any recorded instrument or
88 court proceeding that which affects title to any estate or
89 interest in land and that which describes the land sufficiently
90 to identify its location and boundaries.
91 (5)(4) “Property owners’ association” The term “homeowners’
92 association” means a homeowners’ association as defined in s.
93 720.301, a corporation or other entity responsible for the
94 operation of property in which the voting membership is made up
95 of the owners of the property or their agents, or a combination
96 thereof, and in which membership is a mandatory condition of
97 property ownership, or an association of parcel owners which is
98 authorized to enforce a community covenant or restriction use
99 restrictions that is are imposed on the parcels.
100 (3)(5) The term “Parcel” means any real property that which
101 is used for residential purposes that is subject to exclusive
102 ownership and which is subject to any covenant or restriction of
103 a property owners’ homeowners’ association.
104 (2)(6) The term “Covenant or restriction” means any
105 agreement or limitation contained in a document recorded in the
106 public records of the county in which a parcel is located which
107 subjects the parcel to any use or other restriction or
108 obligation which may be enforced by a homeowners’ association or
109 which authorizes a homeowners’ association to impose a charge or
110 assessment against the parcel or the owner of the parcel or
111 which may be enforced by the Florida Department of Environmental
112 Protection pursuant to chapter 376 or chapter 403.
113 Section 3. Section 712.05, Florida Statutes, is amended to
114 read:
115 712.05 Effect of filing notice.—
116 (1) A person claiming an interest in land or other right
117 subject to extinguishment under this chapter a homeowners’
118 association desiring to preserve a covenant or restriction may
119 preserve and protect such interest or right the same from
120 extinguishment by the operation of this chapter act by filing
121 for record, at any time during the 30-year period immediately
122 following the effective date of the root of title, a written
123 notice in accordance with s. 712.06 this chapter.
124 (2) A property owners’ association may preserve and protect
125 a community covenant or restriction from extinguishment by the
126 operation of this chapter by filing for record, at any time
127 during the 30-year period immediately following the effective
128 date of the root of title:
129 (a) A written notice in accordance with s. 712.06; or
130 (b) A summary notice in substantial form and content as
131 required under s. 720.3032(2); or an amendment to a community
132 covenant or restriction that is indexed under the legal name of
133 the property owners’ association and references the recording
134 information of the covenant or restriction to be preserved.
135 Failure of a summary notice or amendment to be indexed to the
136 current owners of the affected property does not affect the
137 validity of the notice or vitiate the effect of the filing of
138 such notice.
139 (3) A Such notice under subsection (1) or subsection (2)
140 preserves an interest in land or other such claim of right
141 subject to extinguishment under this chapter, or a such covenant
142 or restriction or portion of such covenant or restriction, for
143 not less than up to 30 years after filing the notice unless the
144 notice is filed again as required in this chapter. A person’s
145 disability or lack of knowledge of any kind may not delay the
146 commencement of or suspend the running of the 30-year period.
147 Such notice may be filed for record by the claimant or by any
148 other person acting on behalf of a claimant who is:
149 (a) Under a disability;
150 (b) Unable to assert a claim on his or her behalf; or
151 (c) One of a class, but whose identity cannot be
152 established or is uncertain at the time of filing such notice of
153 claim for record.
154
155 Such notice may be filed by a homeowners’ association only if
156 the preservation of such covenant or restriction or portion of
157 such covenant or restriction is approved by at least two-thirds
158 of the members of the board of directors of an incorporated
159 homeowners’ association at a meeting for which a notice, stating
160 the meeting’s time and place and containing the statement of
161 marketable title action described in s. 712.06(1)(b), was mailed
162 or hand delivered to members of the homeowners’ association at
163 least 7 days before such meeting. The property owners’
164 homeowners’ association or clerk of the circuit court is not
165 required to provide additional notice pursuant to s. 712.06(3)
166 for a notice filed under subsection (2). The preceding sentence
167 is intended to clarify existing law.
168 (4)(2) It is shall not be necessary for the owner of the
169 marketable record title, as described in s. 712.02 herein
170 defined, to file a notice to protect his or her marketable
171 record title.
172 Section 4. Subsections (1) and (3) of section 712.06,
173 Florida Statutes, are amended to read:
174 712.06 Contents of notice; recording and indexing.—
175 (1) To be effective, the notice referred to in s. 712.05,
176 other than the summary notice and the amendment referred to in
177 s. 712.05(2)(b), must shall contain:
178 (a) The name or description and mailing address of the
179 claimant or the property owners’ homeowners’ association
180 desiring to preserve any covenant or restriction and the name
181 and particular post office address of the person filing the
182 claim or the homeowners’ association.
183 (b) The name and mailing post office address of an owner,
184 or the name and mailing post office address of the person in
185 whose name the said property is assessed on the last completed
186 tax assessment roll of the county at the time of filing, who,
187 for purpose of such notice, shall be deemed to be an owner;
188 provided, however, if a property owners’ homeowners’ association
189 is filing the notice, then the requirements of this paragraph
190 may be satisfied by attaching to and recording with the notice
191 an affidavit executed by the appropriate member of the board of
192 directors of the property owners’ homeowners’ association
193 affirming that the board of directors of the property owners’
194 homeowners’ association caused a statement in substantially the
195 following form to be mailed or hand delivered to the members of
196 that property owners’ homeowners’ association:
197
198 STATEMENT OF MARKETABLE TITLE ACTION
199
200 The [name of property owners’ homeowners’ association] (the
201 “Association”) has taken action to ensure that the [name of
202 declaration, covenant, or restriction], recorded in Official
203 Records Book ...., Page ...., of the public records of ....
204 County, Florida, as may be amended from time to time, currently
205 burdening the property of each and every member of the
206 Association, retains its status as the source of marketable
207 title with regard to the affected real property the transfer of
208 a member’s residence. To this end, the Association shall cause
209 the notice required by chapter 712, Florida Statutes, to be
210 recorded in the public records of .... County, Florida. Copies
211 of this notice and its attachments are available through the
212 Association pursuant to the Association’s governing documents
213 regarding official records of the Association.
214
215 (c) A full and complete description of all land affected by
216 such notice, which description shall be set forth in particular
217 terms and not by general reference, but if said claim is founded
218 upon a recorded instrument or a covenant or a restriction, then
219 the description in such notice may be the same as that contained
220 in such recorded instrument or covenant or restriction, provided
221 the same shall be sufficient to identify the property.
222 (d) A statement of the claim showing the nature,
223 description, and extent of such claim or other right subject to
224 extinguishment under this chapter or, in the case of a covenant
225 or restriction, a copy of the covenant or restriction or a
226 reference to the book and page or instrument number in which the
227 same is recorded, except that it is shall not be necessary to
228 show the amount of any claim for money or the terms of payment.
229 (e) If such claim or other right subject to extinguishment
230 under this chapter is based upon an instrument of record or a
231 recorded covenant or restriction, such instrument of record or
232 recorded covenant or restriction shall be deemed sufficiently
233 described to identify the same if the notice includes a
234 reference to the book and page in which the same is recorded.
235 (f) Such notice shall be acknowledged in the same manner as
236 deeds are acknowledged for record.
237 (3) The person providing the notice referred to in s.
238 712.05, other than a notice for preservation of a community
239 covenant or restriction, shall:
240 (a) Cause the clerk of the circuit court to mail by
241 registered or certified mail to the purported owner of said
242 property, as stated in such notice, a copy thereof and shall
243 enter on the original, before recording the same, a certificate
244 showing such mailing. For preparing the certificate, the
245 claimant shall pay to the clerk the service charge as prescribed
246 in s. 28.24(8) and the necessary costs of mailing, in addition
247 to the recording charges as prescribed in s. 28.24(12). If the
248 notice names purported owners having more than one address, the
249 person filing the same shall furnish a true copy for each of the
250 several addresses stated, and the clerk shall send one such copy
251 to the purported owners named at each respective address. Such
252 certificate shall be sufficient if the same reads substantially
253 as follows:
254
255 I hereby certify that I did on this ...., mail by
256 registered (or certified) mail a copy of the foregoing notice to
257 each of the following at the address stated:
258
259 ...(Clerk of the circuit court)...
260 of .... County, Florida,
261 By...(Deputy clerk)...
262
263 The clerk of the circuit court is not required to mail to the
264 purported owner of such property any such notice that pertains
265 solely to the preserving of any covenant or restriction or any
266 portion of a covenant or restriction; or
267 (b) Publish once a week, for 2 consecutive weeks, the
268 notice referred to in s. 712.05, with the official record book
269 and page number in which such notice was recorded, in a
270 newspaper as defined in chapter 50 in the county in which the
271 property is located.
272 Section 5. Section 712.11, Florida Statutes, is amended to
273 read:
274 712.11 Covenant revitalization.—A property owners’
275 homeowners’ association not otherwise subject to chapter 720 may
276 use the procedures set forth in ss. 720.403-720.407 to revive
277 covenants that have lapsed under the terms of this chapter.
278 Section 6. Section 712.12, Florida Statutes, is created to
279 read:
280 712.12 Covenant or restriction revitalization by parcel
281 owners not subject to a homeowners’ association.—
282 (1) As used in this section, the term:
283 (a) “Community” means the real property that is subject to
284 a covenant or restriction that is recorded in the county where
285 the property is located.
286 (b) “Covenant or restriction” means any agreement or
287 limitation imposed by a private party and not required by a
288 governmental agency as a condition of a development permit, as
289 defined in s. 163.3164, which is contained in a document
290 recorded in the public records of the county in which a parcel
291 is located and which subjects the parcel to any use restriction
292 that may be enforced by a parcel owner.
293 (c) “Parcel” means real property that is used for
294 residential purposes and that is subject to exclusive ownership
295 and any covenant or restriction that may be enforced by a parcel
296 owner.
297 (d) “Parcel owner” means the record owner of legal title to
298 a parcel.
299 (2) The parcel owners of a community not subject to a
300 homeowners’ association may use the procedures set forth in ss.
301 720.403-720.407 to revive covenants or restrictions that have
302 lapsed under the terms of this chapter, except:
303 (a) A reference to a homeowners’ association or articles of
304 incorporation or bylaws of a homeowners’ association under ss.
305 720.403-720.407 is not required to revive the covenants or
306 restrictions.
307 (b) The approval required under s. 720.405(6) must be in
308 writing, and not at a meeting.
309 (c) The requirements under s. 720.407(2) may be satisfied
310 by having the organizing committee execute the revived covenants
311 or restrictions in the name of the community.
312 (d) The indexing requirements under s. 720.407(3) may be
313 satisfied by indexing the community name in the covenants or
314 restrictions as the grantee and the parcel owners as the
315 grantors.
316 (3) With respect to any parcel that has ceased to be
317 governed by covenants or restrictions as of October 1, 2018, the
318 parcel owner may commence an action by October 1, 2019, for a
319 judicial determination that the covenants or restrictions did
320 not govern that parcel as of October 1, 2018, and that any
321 revitalization of such covenants or restrictions as to that
322 parcel would unconstitutionally deprive the parcel owner of
323 rights or property.
324 (4) Revived covenants or restrictions that are implemented
325 pursuant to this section do not apply to or affect the rights of
326 the parcel owner which are recognized by any court order or
327 judgment in any action commenced by October 1, 2019, and any
328 such rights so recognized may not be subsequently altered by
329 revived covenants or restrictions implemented under this section
330 without the consent of the affected parcel owner.
331 Section 7. Paragraph (e) is added to subsection (2) of
332 section 720.303, Florida Statutes, to read:
333 720.303 Association powers and duties; meetings of board;
334 official records; budgets; financial reporting; association
335 funds; recalls.—
336 (2) BOARD MEETINGS.—
337 (e) At the first board meeting, excluding the
338 organizational meeting, which follows the annual meeting of the
339 members, the board shall consider the desirability of filing
340 notices to preserve the covenants or restrictions affecting the
341 community or association from extinguishment under the
342 Marketable Record Title Act, chapter 712, and to authorize and
343 direct the appropriate officer to file notice in accordance with
344 s. 720.3032.
345 Section 8. Section 720.3032, Florida Statutes, is created
346 to read:
347 720.3032 Notice of association information; preservation
348 from Marketable Record Title Act.—
349 (1) Any property owners’ association desiring to preserve
350 covenants from potential termination after 30 years by operation
351 of chapter 712 may record in the official records of each county
352 in which the community is located a notice specifying:
353 (a) The legal name of the association.
354 (b) The mailing and physical addresses of the association.
355 (c) The names of the affected subdivision plats and
356 condominiums or, if not applicable, the common name of the
357 community.
358 (d) The name, address, and telephone number for the current
359 community association management company or community
360 association manager, if any.
361 (e) Indication as to whether the association desires to
362 preserve the covenants or restrictions affecting the community
363 or association from extinguishment under the Marketable Record
364 Title Act, chapter 712.
365 (f) A listing by name and recording information of those
366 covenants or restrictions affecting the community which the
367 association desires to be preserved from extinguishment.
368 (g) The legal description of the community affected by the
369 covenants or restrictions, which may be satisfied by a reference
370 to a recorded plat.
371 (h) The signature of a duly authorized officer of the
372 association, acknowledged in the same manner as deeds are
373 acknowledged for record.
374 (2) Recording a document in substantially the following
375 form satisfies the notice obligation and constitutes a summary
376 notice as specified in s. 712.05(2)(b) sufficient to preserve
377 and protect the referenced covenants and restrictions from
378 extinguishment under the Marketable Record Title Act, chapter
379 712.
380
381 Notice of ...(name of association)... under s. 720.3032, Florida
382 Statutes, and notice to preserve and protect covenants and
383 restrictions from extinguishment under the Marketable Record
384 Title Act, chapter 712, Florida Statutes.
385
386 Instructions to recorder: Please index both the legal name
387 of the association and the names shown in item 3.
388 1. Legal name of association: ....
389 2. Mailing and physical addresses of association: .... ....
390 3. Names of the subdivision plats, or, if none, common name
391 of community: ....
392 4. Name, address, and telephone number for management
393 company, if any: ................
394 5. This notice does .... does not .... constitute a notice
395 to preserve and protect covenants or restrictions from
396 extinguishment under the Marketable Record Title Act.
397 6. The following covenants or restrictions affecting the
398 community which the association desires to be preserved from
399 extinguishment:
400 ...(Name of instrument)...
401 ...(Official Records Book where recorded & page)...
402 ...(List of instruments)...
403 ...(List of recording information)...
404 7. The legal description of the community affected by the
405 listed covenants or restrictions is: ...(Legal description,
406 which may be satisfied by reference to a recorded plat)...
407 This notice is filed on behalf of ...(Name of
408 association)... as of ...(Date)....
409 ...(Name of association)...
410
411 By: ....
412 ...(Name of individual officer)...
413 ...(Title of officer)...
414 ...(Notary acknowledgment)...
415
416 (3) A copy of the notice, as filed, must be included as
417 part of the next notice of meeting or other mailing sent to all
418 members.
419 (4) The original signed notice must be recorded in the
420 official records of the clerk of the circuit court or other
421 recorder for the county.
422 Section 9. Section 702.09, Florida Statutes, is amended to
423 read:
424 702.09 Definitions.—For the purposes of ss. 702.07 and
425 702.08, the words “decree of foreclosure” shall include a
426 judgment or order rendered or passed in the foreclosure
427 proceedings in which the decree of foreclosure shall be
428 rescinded, vacated, and set aside; the word “mortgage” shall
429 mean any written instrument securing the payment of money or
430 advances and includes liens to secure payment of assessments
431 arising under chapters 718 and 719 and liens created pursuant to
432 the recorded covenants of a property owners’ homeowners’
433 association as defined in s. 712.01; the word “debt” shall
434 include promissory notes, bonds, and all other written
435 obligations given for the payment of money; the words
436 “foreclosure proceedings” shall embrace every action in the
437 circuit or county courts of this state wherein it is sought to
438 foreclose a mortgage and sell the property covered by the same;
439 and the word “property” shall mean and include both real and
440 personal property.
441 Section 10. Subsection (1) of section 702.10, Florida
442 Statutes, is amended to read:
443 702.10 Order to show cause; entry of final judgment of
444 foreclosure; payment during foreclosure.—
445 (1) A lienholder may request an order to show cause for the
446 entry of final judgment in a foreclosure action. For purposes of
447 this section, the term “lienholder” includes the plaintiff and a
448 defendant to the action who holds a lien encumbering the
449 property or a defendant who, by virtue of its status as a
450 condominium association, cooperative association, or property
451 owners’ homeowners’ association, may file a lien against the
452 real property subject to foreclosure. Upon filing, the court
453 shall immediately review the request and the court file in
454 chambers and without a hearing. If, upon examination of the
455 court file, the court finds that the complaint is verified,
456 complies with s. 702.015, and alleges a cause of action to
457 foreclose on real property, the court shall promptly issue an
458 order directed to the other parties named in the action to show
459 cause why a final judgment of foreclosure should not be entered.
460 (a) The order shall:
461 1. Set the date and time for a hearing to show cause. The
462 date for the hearing may not occur sooner than the later of 20
463 days after service of the order to show cause or 45 days after
464 service of the initial complaint. When service is obtained by
465 publication, the date for the hearing may not be set sooner than
466 30 days after the first publication.
467 2. Direct the time within which service of the order to
468 show cause and the complaint must be made upon the defendant.
469 3. State that the filing of defenses by a motion, a
470 responsive pleading, an affidavit, or other papers before the
471 hearing to show cause that raise a genuine issue of material
472 fact which would preclude the entry of summary judgment or
473 otherwise constitute a legal defense to foreclosure shall
474 constitute cause for the court not to enter final judgment.
475 4. State that a defendant has the right to file affidavits
476 or other papers before the time of the hearing to show cause and
477 may appear personally or by way of an attorney at the hearing.
478 5. State that, if a defendant files defenses by a motion, a
479 verified or sworn answer, affidavits, or other papers or appears
480 personally or by way of an attorney at the time of the hearing,
481 the hearing time will be used to hear and consider whether the
482 defendant’s motion, answer, affidavits, other papers, and other
483 evidence and argument as may be presented by the defendant or
484 the defendant’s attorney raise a genuine issue of material fact
485 which would preclude the entry of summary judgment or otherwise
486 constitute a legal defense to foreclosure. The order shall also
487 state that the court may enter an order of final judgment of
488 foreclosure at the hearing and order the clerk of the court to
489 conduct a foreclosure sale.
490 6. State that, if a defendant fails to appear at the
491 hearing to show cause or fails to file defenses by a motion or
492 by a verified or sworn answer or files an answer not contesting
493 the foreclosure, such defendant may be considered to have waived
494 the right to a hearing, and in such case, the court may enter a
495 default against such defendant and, if appropriate, a final
496 judgment of foreclosure ordering the clerk of the court to
497 conduct a foreclosure sale.
498 7. State that if the mortgage provides for reasonable
499 attorney fees and the requested attorney fees do not exceed 3
500 percent of the principal amount owed at the time of filing the
501 complaint, it is unnecessary for the court to hold a hearing or
502 adjudge the requested attorney fees to be reasonable.
503 8. Attach the form of the proposed final judgment of
504 foreclosure which the movant requests the court to enter at the
505 hearing on the order to show cause.
506 9. Require the party seeking final judgment to serve a copy
507 of the order to show cause on the other parties in the following
508 manner:
509 a. If a party has been served pursuant to chapter 48 with
510 the complaint and original process, or the other party is the
511 plaintiff in the action, service of the order to show cause on
512 that party may be made in the manner provided in the Florida
513 Rules of Civil Procedure.
514 b. If a defendant has not been served pursuant to chapter
515 48 with the complaint and original process, the order to show
516 cause, together with the summons and a copy of the complaint,
517 shall be served on the party in the same manner as provided by
518 law for original process.
519
520 Any final judgment of foreclosure entered under this subsection
521 is for in rem relief only. This subsection does not preclude the
522 entry of a deficiency judgment where otherwise allowed by law.
523 The Legislature intends that this alternative procedure may run
524 simultaneously with other court procedures.
525 (b) The right to be heard at the hearing to show cause is
526 waived if a defendant, after being served as provided by law
527 with an order to show cause, engages in conduct that clearly
528 shows that the defendant has relinquished the right to be heard
529 on that order. The defendant’s failure to file defenses by a
530 motion or by a sworn or verified answer, affidavits, or other
531 papers or to appear personally or by way of an attorney at the
532 hearing duly scheduled on the order to show cause presumptively
533 constitutes conduct that clearly shows that the defendant has
534 relinquished the right to be heard. If a defendant files
535 defenses by a motion, a verified answer, affidavits, or other
536 papers or presents evidence at or before the hearing which raise
537 a genuine issue of material fact which would preclude entry of
538 summary judgment or otherwise constitute a legal defense to
539 foreclosure, such action constitutes cause and precludes the
540 entry of a final judgment at the hearing to show cause.
541 (c) In a mortgage foreclosure proceeding, when a final
542 judgment of foreclosure has been entered against the mortgagor
543 and the note or mortgage provides for the award of reasonable
544 attorney fees, it is unnecessary for the court to hold a hearing
545 or adjudge the requested attorney fees to be reasonable if the
546 fees do not exceed 3 percent of the principal amount owed on the
547 note or mortgage at the time of filing, even if the note or
548 mortgage does not specify the percentage of the original amount
549 that would be paid as liquidated damages.
550 (d) If the court finds that all defendants have waived the
551 right to be heard as provided in paragraph (b), the court shall
552 promptly enter a final judgment of foreclosure without the need
553 for further hearing if the plaintiff has shown entitlement to a
554 final judgment and upon the filing with the court of the
555 original note, satisfaction of the conditions for establishment
556 of a lost note, or upon a showing to the court that the
557 obligation to be foreclosed is not evidenced by a promissory
558 note or other negotiable instrument. If the court finds that a
559 defendant has not waived the right to be heard on the order to
560 show cause, the court shall determine whether there is cause not
561 to enter a final judgment of foreclosure. If the court finds
562 that the defendant has not shown cause, the court shall promptly
563 enter a judgment of foreclosure. If the time allotted for the
564 hearing is insufficient, the court may announce at the hearing a
565 date and time for the continued hearing. Only the parties who
566 appear, individually or through an attorney, at the initial
567 hearing must be notified of the date and time of the continued
568 hearing.
569 Section 11. Section 712.095, Florida Statutes, is amended
570 to read:
571 712.095 Notice required by July 1, 1983.—Any person whose
572 interest in land is derived from an instrument or court
573 proceeding recorded subsequent to the root of title, which
574 instrument or proceeding did not contain a description of the
575 land as specified by s. 712.01(7) s. 712.01(3), and whose
576 interest had not been extinguished prior to July 1, 1981, shall
577 have until July 1, 1983, to file a notice in accordance with s.
578 712.06 to preserve the interest.
579 Section 12. Section 720.403, Florida Statutes, is amended
580 to read:
581 720.403 Preservation of residential communities; revival of
582 declaration of covenants.—
583 (1) Consistent with required and optional elements of local
584 comprehensive plans and other applicable provisions of the
585 Community Planning Act, property owners homeowners are
586 encouraged to preserve existing residential and other
587 communities, promote available and affordable housing, protect
588 structural and aesthetic elements of their residential
589 community, and, as applicable, maintain roads and streets,
590 easements, water and sewer systems, utilities, drainage
591 improvements, conservation and open areas, recreational
592 amenities, and other infrastructure and common areas that serve
593 and support the residential community by the revival of a
594 previous declaration of covenants and other governing documents
595 that may have ceased to govern some or all parcels in the
596 community.
597 (2) In order to preserve a residential community and the
598 associated infrastructure and common areas for the purposes
599 described in this section, the parcel owners in a community that
600 was previously subject to a declaration of covenants that has
601 ceased to govern one or more parcels in the community may revive
602 the declaration and the homeowners’ association for the
603 community upon approval by the parcel owners to be governed
604 thereby as provided in this act, and upon approval of the
605 declaration and the other governing documents for the
606 association by the Department of Economic Opportunity in a
607 manner consistent with this act.
608 (3) Part III of this chapter is intended to provide
609 mechanisms for the revitalization of covenants or restrictions
610 for all types of communities and property associations and is
611 not limited to residential communities.
612 Section 13. Section 720.404, Florida Statutes, is amended
613 to read:
614 720.404 Eligible residential communities; requirements for
615 revival of declaration.—Parcel owners in a community are
616 eligible to seek approval from the Department of Economic
617 Opportunity to revive a declaration of covenants under this act
618 if all of the following requirements are met:
619 (1) All parcels to be governed by the revived declaration
620 must have been once governed by a previous declaration that has
621 ceased to govern some or all of the parcels in the community;
622 (2) The revived declaration must be approved in the manner
623 provided in s. 720.405(6); and
624 (3) The revived declaration may not contain covenants that
625 are more restrictive on the parcel owners than the covenants
626 contained in the previous declaration, except that the
627 declaration may:
628 (a) Have an effective term of longer duration than the term
629 of the previous declaration;
630 (b) Omit restrictions contained in the previous
631 declaration;
632 (c) Govern fewer than all of the parcels governed by the
633 previous declaration;
634 (d) Provide for amendments to the declaration and other
635 governing documents; and
636 (e) Contain provisions required by this chapter for new
637 declarations that were not contained in the previous
638 declaration.
639 Section 14. Subsections (1), (3), (5), and (6) of section
640 720.405, Florida Statutes, are amended to read:
641 720.405 Organizing committee; parcel owner approval.—
642 (1) The proposal to revive a declaration of covenants and
643 an a homeowners’ association for a community under the terms of
644 this act shall be initiated by an organizing committee
645 consisting of not less than three parcel owners located in the
646 community that is proposed to be governed by the revived
647 declaration. The name, address, and telephone number of each
648 member of the organizing committee must be included in any
649 notice or other document provided by the committee to parcel
650 owners to be affected by the proposed revived declaration.
651 (3) The organizing committee shall prepare the full text of
652 the proposed articles of incorporation and bylaws of the revived
653 homeowners’ association to be submitted to the parcel owners for
654 approval, unless the association is then an existing
655 corporation, in which case the organizing committee shall
656 prepare the existing articles of incorporation and bylaws to be
657 submitted to the parcel owners.
658 (5) A copy of the complete text of the proposed revised
659 declaration of covenants, the proposed new or existing articles
660 of incorporation and bylaws of the homeowners’ association, and
661 a graphic depiction of the property to be governed by the
662 revived declaration shall be presented to all of the affected
663 parcel owners by mail or hand delivery not less than 14 days
664 before the time that the consent of the affected parcel owners
665 to the proposed governing documents is sought by the organizing
666 committee.
667 (6) A majority of the affected parcel owners must agree in
668 writing to the revived declaration of covenants and governing
669 documents of the homeowners’ association or approve the revived
670 declaration and governing documents by a vote at a meeting of
671 the affected parcel owners noticed and conducted in the manner
672 prescribed by s. 720.306. Proof of notice of the meeting to all
673 affected owners of the meeting and the minutes of the meeting
674 recording the votes of the property owners shall be certified by
675 a court reporter or an attorney licensed to practice in the
676 state.
677 Section 15. Subsection (3) of section 720.407, Florida
678 Statutes, is amended to read:
679 720.407 Recording; notice of recording; applicability and
680 effective date.—
681 (3) The recorded documents shall include the full text of
682 the approved declaration of covenants, the articles of
683 incorporation and bylaws of the homeowners’ association, the
684 letter of approval by the department, and the legal description
685 of each affected parcel of property. For purposes of chapter
686 712, the association is deemed to be and shall be indexed as the
687 grantee in a title transaction and the parcel owners named in
688 the revived declaration are deemed to be and shall be indexed as
689 the grantors in the title transaction.
690 Section 16. This act shall take effect October 1, 2018.
