Bill Text: FL S0266 | 2018 | Regular Session | Introduced


Bill Title: Covenants and Restrictions

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced) 2017-12-05 - Now in Judiciary [S0266 Detail]

Download: Florida-2018-S0266-Introduced.html
       Florida Senate - 2018                                     SB 266
       
       
        
       By Senator Passidomo
       
       
       
       
       
       28-00026A-18                                           2018266__
    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 termhomeowners’
   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 covenant or
  132  restriction that is indexed under the legal name of the property
  133  owners’ association and references the recording information of
  134  the covenant or restriction to be preserved. Failure of a
  135  summary notice or amendment to be indexed to the current owners
  136  of the affected property does not affect the validity of the
  137  notice or vitiate the effect of the filing of such notice.
  138         (3)A Such notice under subsection (1) or subsection (2)
  139  preserves an interest in land or other such claim of right
  140  subject to extinguishment under this chapter, or a such covenant
  141  or restriction or portion of such covenant or restriction, for
  142  not less than up to 30 years after filing the notice unless the
  143  notice is filed again as required in this chapter. A person’s
  144  disability or lack of knowledge of any kind may not delay the
  145  commencement of or suspend the running of the 30-year period.
  146  Such notice may be filed for record by the claimant or by any
  147  other person acting on behalf of a claimant who is:
  148         (a) Under a disability;
  149         (b) Unable to assert a claim on his or her behalf; or
  150         (c) One of a class, but whose identity cannot be
  151  established or is uncertain at the time of filing such notice of
  152  claim for record.
  153  
  154  Such notice may be filed by a homeowners’ association only if
  155  the preservation of such covenant or restriction or portion of
  156  such covenant or restriction is approved by at least two-thirds
  157  of the members of the board of directors of an incorporated
  158  homeowners’ association at a meeting for which a notice, stating
  159  the meeting’s time and place and containing the statement of
  160  marketable title action described in s. 712.06(1)(b), was mailed
  161  or hand delivered to members of the homeowners’ association at
  162  least 7 days before such meeting. The property owners’
  163  homeowners’ association or clerk of the circuit court is not
  164  required to provide additional notice pursuant to s. 712.06(3)
  165  for a notice filed under subsection (2). The preceding sentence
  166  is intended to clarify existing law.
  167         (4)(2) It is shall not be necessary for the owner of the
  168  marketable record title, as described in s. 712.02 herein
  169  defined, to file a notice to protect his or her marketable
  170  record title.
  171         Section 4. Subsections (1) and (3) of section 712.06,
  172  Florida Statutes, are amended to read:
  173         712.06 Contents of notice; recording and indexing.—
  174         (1) To be effective, the notice referred to in s. 712.05,
  175  other than the summary notice and the amendment referred to in
  176  s. 712.05(2)(b), must shall contain:
  177         (a) The name or description and mailing address of the
  178  claimant or the property owners’ homeowners’ association
  179  desiring to preserve any covenant or restriction and the name
  180  and particular post office address of the person filing the
  181  claim or the homeowners’ association.
  182         (b) The name and mailing post office address of an owner,
  183  or the name and mailing post office address of the person in
  184  whose name the said property is assessed on the last completed
  185  tax assessment roll of the county at the time of filing, who,
  186  for purpose of such notice, shall be deemed to be an owner;
  187  provided, however, if a property owners’ homeowners’ association
  188  is filing the notice, then the requirements of this paragraph
  189  may be satisfied by attaching to and recording with the notice
  190  an affidavit executed by the appropriate member of the board of
  191  directors of the property owners’ homeowners’ association
  192  affirming that the board of directors of the property owners’
  193  homeowners’ association caused a statement in substantially the
  194  following form to be mailed or hand delivered to the members of
  195  that property owners’ homeowners’ association:
  196  
  197                STATEMENT OF MARKETABLE TITLE ACTION               
  198  
  199         The [name of property owners’ homeowners’ association] (the
  200  “Association”) has taken action to ensure that the [name of
  201  declaration, covenant, or restriction], recorded in Official
  202  Records Book ...., Page ...., of the public records of ....
  203  County, Florida, as may be amended from time to time, currently
  204  burdening the property of each and every member of the
  205  Association, retains its status as the source of marketable
  206  title with regard to the affected real property the transfer of
  207  a member’s residence. To this end, the Association shall cause
  208  the notice required by chapter 712, Florida Statutes, to be
  209  recorded in the public records of .... County, Florida. Copies
  210  of this notice and its attachments are available through the
  211  Association pursuant to the Association’s governing documents
  212  regarding official records of the Association.
  213  
  214         (c) A full and complete description of all land affected by
  215  such notice, which description shall be set forth in particular
  216  terms and not by general reference, but if said claim is founded
  217  upon a recorded instrument or a covenant or a restriction, then
  218  the description in such notice may be the same as that contained
  219  in such recorded instrument or covenant or restriction, provided
  220  the same shall be sufficient to identify the property.
  221         (d) A statement of the claim showing the nature,
  222  description, and extent of such claim or other right subject to
  223  extinguishment under this chapter or, in the case of a covenant
  224  or restriction, a copy of the covenant or restriction or a
  225  reference to the book and page or instrument number in which the
  226  same is recorded, except that it is shall not be necessary to
  227  show the amount of any claim for money or the terms of payment.
  228         (e) If such claim or other right subject to extinguishment
  229  under this chapter is based upon an instrument of record or a
  230  recorded covenant or restriction, such instrument of record or
  231  recorded covenant or restriction shall be deemed sufficiently
  232  described to identify the same if the notice includes a
  233  reference to the book and page in which the same is recorded.
  234         (f) Such notice shall be acknowledged in the same manner as
  235  deeds are acknowledged for record.
  236         (3) The person providing the notice referred to in s.
  237  712.05, other than a notice for preservation of a community
  238  covenant or restriction, shall:
  239         (a) Cause the clerk of the circuit court to mail by
  240  registered or certified mail to the purported owner of said
  241  property, as stated in such notice, a copy thereof and shall
  242  enter on the original, before recording the same, a certificate
  243  showing such mailing. For preparing the certificate, the
  244  claimant shall pay to the clerk the service charge as prescribed
  245  in s. 28.24(8) and the necessary costs of mailing, in addition
  246  to the recording charges as prescribed in s. 28.24(12). If the
  247  notice names purported owners having more than one address, the
  248  person filing the same shall furnish a true copy for each of the
  249  several addresses stated, and the clerk shall send one such copy
  250  to the purported owners named at each respective address. Such
  251  certificate shall be sufficient if the same reads substantially
  252  as follows:
  253  
  254         I hereby certify that I did on this ...., mail by
  255  registered (or certified) mail a copy of the foregoing notice to
  256  each of the following at the address stated:
  257  
  258  ...(Clerk of the circuit court)...
  259  of .... County, Florida,
  260  By...(Deputy clerk)...
  261  
  262  The clerk of the circuit court is not required to mail to the
  263  purported owner of such property any such notice that pertains
  264  solely to the preserving of any covenant or restriction or any
  265  portion of a covenant or restriction; or
  266         (b) Publish once a week, for 2 consecutive weeks, the
  267  notice referred to in s. 712.05, with the official record book
  268  and page number in which such notice was recorded, in a
  269  newspaper as defined in chapter 50 in the county in which the
  270  property is located.
  271         Section 5. Section 712.11, Florida Statutes, is amended to
  272  read:
  273         712.11 Covenant revitalization.—A property owners’
  274  homeowners’ association not otherwise subject to chapter 720 may
  275  use the procedures set forth in ss. 720.403-720.407 to revive
  276  covenants that have lapsed under the terms of this chapter.
  277         Section 6. Section 712.12, Florida Statutes, is created to
  278  read:
  279         712.12 Covenant or restriction revitalization by parcel
  280  owners not subject to a homeowners’ association.—
  281         (1) As used in this section, the term:
  282         (a) “Community” means the real property that is subject to
  283  a covenant or restriction that is recorded in the county where
  284  the property is located.
  285         (b) “Covenant or restriction” means any agreement or
  286  limitation imposed by a private party and not required by a
  287  governmental agency as a condition of a development permit, as
  288  defined in s. 163.3164, which is contained in a document
  289  recorded in the public records of the county in which a parcel
  290  is located and which subjects the parcel to any use restriction
  291  that may be enforced by a parcel owner.
  292         (c) “Parcel” means real property that is used for
  293  residential purposes and that is subject to exclusive ownership
  294  and any covenant or restriction that may be enforced by a parcel
  295  owner.
  296         (d) “Parcel owner” means the record owner of legal title to
  297  a parcel.
  298         (2) The parcel owners of a community not subject to a
  299  homeowners’ association may use the procedures set forth in ss.
  300  720.403-720.407 to revive covenants or restrictions that have
  301  lapsed under the terms of this chapter, except:
  302         (a) A reference to a homeowners’ association or articles of
  303  incorporation or bylaws of a homeowners’ association under ss.
  304  720.403-720.407 is not required to revive the covenants or
  305  restrictions.
  306         (b) The approval required under s. 720.405(6) must be in
  307  writing, and not at a meeting.
  308         (c) The requirements under s. 720.407(2) may be satisfied
  309  by having the organizing committee execute the revived covenants
  310  or restrictions in the name of the community.
  311         (d) The indexing requirements under s. 720.407(3) may be
  312  satisfied by indexing the community name in the covenants or
  313  restrictions as the grantee and the parcel owners as the
  314  grantors.
  315         (3) With respect to any parcel that has ceased to be
  316  governed by covenants or restrictions as of October 1, 2018, the
  317  parcel owner may commence an action by October 1, 2019, for a
  318  judicial determination that the covenants or restrictions did
  319  not govern that parcel as of October 1, 2018, and that any
  320  revitalization of such covenants or restrictions as to that
  321  parcel would unconstitutionally deprive the parcel owner of
  322  rights or property.
  323         (4) Revived covenants or restrictions that are implemented
  324  pursuant to this section do not apply to or affect the rights of
  325  the parcel owner which are recognized by any court order or
  326  judgment in any action commenced by October 1, 2019, and any
  327  such rights so recognized may not be subsequently altered by
  328  revived covenants or restrictions implemented under this section
  329  without the consent of the affected parcel owner.
  330         Section 7. Paragraph (e) is added to subsection (2) of
  331  section 720.303, Florida Statutes, to read:
  332         720.303 Association powers and duties; meetings of board;
  333  official records; budgets; financial reporting; association
  334  funds; recalls.—
  335         (2) BOARD MEETINGS.—
  336         (e) At the first board meeting, excluding the
  337  organizational meeting, which follows the annual meeting of the
  338  members, the board shall consider the desirability of filing
  339  notices to preserve the covenants or restrictions affecting the
  340  community or association from extinguishment under the
  341  Marketable Record Title Act, chapter 712, and to authorize and
  342  direct the appropriate officer to file notice in accordance with
  343  s. 720.3032.
  344         Section 8. Section 720.3032, Florida Statutes, is created
  345  to read:
  346         720.3032 Notice of association information; preservation
  347  from Marketable Record Title Act.—
  348         (1)Any property owners’ association desiring to preserve
  349  covenants from potential termination after 30 years by operation
  350  of chapter 712 may record in the official records of each county
  351  in which the community is located a notice specifying:
  352         (a)The legal name of the association.
  353         (b)The mailing and physical addresses of the association.
  354         (c)The names of the affected subdivision plats and
  355  condominiums or, if not applicable, the common name of the
  356  community.
  357         (d)The name, address, and telephone number for the current
  358  community association management company or community
  359  association manager, if any.
  360         (e)Indication as to whether the association desires to
  361  preserve the covenants or restrictions affecting the community
  362  or association from extinguishment under the Marketable Record
  363  Title Act, chapter 712.
  364         (f)A listing by name and recording information of those
  365  covenants or restrictions affecting the community which the
  366  association desires to be preserved from extinguishment.
  367         (g)The legal description of the community affected by the
  368  covenants or restrictions, which may be satisfied by a reference
  369  to a recorded plat.
  370         (h)The signature of a duly authorized officer of the
  371  association, acknowledged in the same manner as deeds are
  372  acknowledged for record.
  373         (2)Recording a document in substantially the following
  374  form satisfies the notice obligation and constitutes a summary
  375  notice as specified in s. 712.05(2)(b) sufficient to preserve
  376  and protect the referenced covenants and restrictions from
  377  extinguishment under the Marketable Record Title Act, chapter
  378  712.
  379  
  380  Notice of ...(name of association)... under s. 720.3032, Florida 
  381     Statutes, and notice to preserve and protect covenants and    
  382    restrictions from extinguishment under the Marketable Record   
  383              Title Act, chapter 712, Florida Statutes.            
  384  
  385         Instructions to recorder: Please index both the legal name
  386  of the association and the names shown in item 3.
  387         1. Legal name of association: ....
  388         2. Mailing and physical addresses of association: .... ....
  389         3.Names of the subdivision plats, or, if none, common name
  390  of community: ....
  391         4. Name, address, and telephone number for management
  392  company, if any: ................
  393         5. This notice does .... does not .... constitute a notice
  394  to preserve and protect covenants or restrictions from
  395  extinguishment under the Marketable Record Title Act.
  396         6. The following covenants or restrictions affecting the
  397  community which the association desires to be preserved from
  398  extinguishment:
  399  ...(Name of instrument)...
  400  ...(Official Records Book where recorded & page)...
  401  ...(List of instruments)...
  402  ...(List of recording information)...
  403         7. The legal description of the community affected by the
  404  listed covenants or restrictions is: ...(Legal description,
  405  which may be satisfied by reference to a recorded plat)...
  406         This notice is filed on behalf of ...(Name of
  407  association)... as of ...(Date)....
  408  ...(Name of association)...
  409  
  410  By: ....
  411  ...(Name of individual officer)...
  412  ...(Title of officer)...
  413  ...(Notary acknowledgment)...
  414  
  415         (3)A copy of the notice, as filed, must be included as
  416  part of the next notice of meeting or other mailing sent to all
  417  members.
  418         (4)The original signed notice must be recorded in the
  419  official records of the clerk of the circuit court or other
  420  recorder for the county.
  421         Section 9. Section 702.09, Florida Statutes, is amended to
  422  read:
  423         702.09 Definitions.—For the purposes of ss. 702.07 and
  424  702.08, the words “decree of foreclosure” shall include a
  425  judgment or order rendered or passed in the foreclosure
  426  proceedings in which the decree of foreclosure shall be
  427  rescinded, vacated, and set aside; the word “mortgage” shall
  428  mean any written instrument securing the payment of money or
  429  advances and includes liens to secure payment of assessments
  430  arising under chapters 718 and 719 and liens created pursuant to
  431  the recorded covenants of a property owners’ homeowners’
  432  association as defined in s. 712.01; the word “debt” shall
  433  include promissory notes, bonds, and all other written
  434  obligations given for the payment of money; the words
  435  “foreclosure proceedings” shall embrace every action in the
  436  circuit or county courts of this state wherein it is sought to
  437  foreclose a mortgage and sell the property covered by the same;
  438  and the word “property” shall mean and include both real and
  439  personal property.
  440         Section 10. Subsection (1) of section 702.10, Florida
  441  Statutes, is amended to read:
  442         702.10 Order to show cause; entry of final judgment of
  443  foreclosure; payment during foreclosure.—
  444         (1) A lienholder may request an order to show cause for the
  445  entry of final judgment in a foreclosure action. For purposes of
  446  this section, the term “lienholder” includes the plaintiff and a
  447  defendant to the action who holds a lien encumbering the
  448  property or a defendant who, by virtue of its status as a
  449  condominium association, cooperative association, or property
  450  owners’ homeowners’ association, may file a lien against the
  451  real property subject to foreclosure. Upon filing, the court
  452  shall immediately review the request and the court file in
  453  chambers and without a hearing. If, upon examination of the
  454  court file, the court finds that the complaint is verified,
  455  complies with s. 702.015, and alleges a cause of action to
  456  foreclose on real property, the court shall promptly issue an
  457  order directed to the other parties named in the action to show
  458  cause why a final judgment of foreclosure should not be entered.
  459         (a) The order shall:
  460         1. Set the date and time for a hearing to show cause. The
  461  date for the hearing may not occur sooner than the later of 20
  462  days after service of the order to show cause or 45 days after
  463  service of the initial complaint. When service is obtained by
  464  publication, the date for the hearing may not be set sooner than
  465  30 days after the first publication.
  466         2. Direct the time within which service of the order to
  467  show cause and the complaint must be made upon the defendant.
  468         3. State that the filing of defenses by a motion, a
  469  responsive pleading, an affidavit, or other papers before the
  470  hearing to show cause that raise a genuine issue of material
  471  fact which would preclude the entry of summary judgment or
  472  otherwise constitute a legal defense to foreclosure shall
  473  constitute cause for the court not to enter final judgment.
  474         4. State that a defendant has the right to file affidavits
  475  or other papers before the time of the hearing to show cause and
  476  may appear personally or by way of an attorney at the hearing.
  477         5. State that, if a defendant files defenses by a motion, a
  478  verified or sworn answer, affidavits, or other papers or appears
  479  personally or by way of an attorney at the time of the hearing,
  480  the hearing time will be used to hear and consider whether the
  481  defendant’s motion, answer, affidavits, other papers, and other
  482  evidence and argument as may be presented by the defendant or
  483  the defendant’s attorney raise a genuine issue of material fact
  484  which would preclude the entry of summary judgment or otherwise
  485  constitute a legal defense to foreclosure. The order shall also
  486  state that the court may enter an order of final judgment of
  487  foreclosure at the hearing and order the clerk of the court to
  488  conduct a foreclosure sale.
  489         6. State that, if a defendant fails to appear at the
  490  hearing to show cause or fails to file defenses by a motion or
  491  by a verified or sworn answer or files an answer not contesting
  492  the foreclosure, such defendant may be considered to have waived
  493  the right to a hearing, and in such case, the court may enter a
  494  default against such defendant and, if appropriate, a final
  495  judgment of foreclosure ordering the clerk of the court to
  496  conduct a foreclosure sale.
  497         7. State that if the mortgage provides for reasonable
  498  attorney fees and the requested attorney fees do not exceed 3
  499  percent of the principal amount owed at the time of filing the
  500  complaint, it is unnecessary for the court to hold a hearing or
  501  adjudge the requested attorney fees to be reasonable.
  502         8. Attach the form of the proposed final judgment of
  503  foreclosure which the movant requests the court to enter at the
  504  hearing on the order to show cause.
  505         9. Require the party seeking final judgment to serve a copy
  506  of the order to show cause on the other parties in the following
  507  manner:
  508         a. If a party has been served pursuant to chapter 48 with
  509  the complaint and original process, or the other party is the
  510  plaintiff in the action, service of the order to show cause on
  511  that party may be made in the manner provided in the Florida
  512  Rules of Civil Procedure.
  513         b. If a defendant has not been served pursuant to chapter
  514  48 with the complaint and original process, the order to show
  515  cause, together with the summons and a copy of the complaint,
  516  shall be served on the party in the same manner as provided by
  517  law for original process.
  518  
  519  Any final judgment of foreclosure entered under this subsection
  520  is for in rem relief only. This subsection does not preclude the
  521  entry of a deficiency judgment where otherwise allowed by law.
  522  The Legislature intends that this alternative procedure may run
  523  simultaneously with other court procedures.
  524         (b) The right to be heard at the hearing to show cause is
  525  waived if a defendant, after being served as provided by law
  526  with an order to show cause, engages in conduct that clearly
  527  shows that the defendant has relinquished the right to be heard
  528  on that order. The defendant’s failure to file defenses by a
  529  motion or by a sworn or verified answer, affidavits, or other
  530  papers or to appear personally or by way of an attorney at the
  531  hearing duly scheduled on the order to show cause presumptively
  532  constitutes conduct that clearly shows that the defendant has
  533  relinquished the right to be heard. If a defendant files
  534  defenses by a motion, a verified answer, affidavits, or other
  535  papers or presents evidence at or before the hearing which raise
  536  a genuine issue of material fact which would preclude entry of
  537  summary judgment or otherwise constitute a legal defense to
  538  foreclosure, such action constitutes cause and precludes the
  539  entry of a final judgment at the hearing to show cause.
  540         (c) In a mortgage foreclosure proceeding, when a final
  541  judgment of foreclosure has been entered against the mortgagor
  542  and the note or mortgage provides for the award of reasonable
  543  attorney fees, it is unnecessary for the court to hold a hearing
  544  or adjudge the requested attorney fees to be reasonable if the
  545  fees do not exceed 3 percent of the principal amount owed on the
  546  note or mortgage at the time of filing, even if the note or
  547  mortgage does not specify the percentage of the original amount
  548  that would be paid as liquidated damages.
  549         (d) If the court finds that all defendants have waived the
  550  right to be heard as provided in paragraph (b), the court shall
  551  promptly enter a final judgment of foreclosure without the need
  552  for further hearing if the plaintiff has shown entitlement to a
  553  final judgment and upon the filing with the court of the
  554  original note, satisfaction of the conditions for establishment
  555  of a lost note, or upon a showing to the court that the
  556  obligation to be foreclosed is not evidenced by a promissory
  557  note or other negotiable instrument. If the court finds that a
  558  defendant has not waived the right to be heard on the order to
  559  show cause, the court shall determine whether there is cause not
  560  to enter a final judgment of foreclosure. If the court finds
  561  that the defendant has not shown cause, the court shall promptly
  562  enter a judgment of foreclosure. If the time allotted for the
  563  hearing is insufficient, the court may announce at the hearing a
  564  date and time for the continued hearing. Only the parties who
  565  appear, individually or through an attorney, at the initial
  566  hearing must be notified of the date and time of the continued
  567  hearing.
  568         Section 11. Section 712.095, Florida Statutes, is amended
  569  to read:
  570         712.095 Notice required by July 1, 1983.—Any person whose
  571  interest in land is derived from an instrument or court
  572  proceeding recorded subsequent to the root of title, which
  573  instrument or proceeding did not contain a description of the
  574  land as specified by s. 712.01(7) s. 712.01(3), and whose
  575  interest had not been extinguished prior to July 1, 1981, shall
  576  have until July 1, 1983, to file a notice in accordance with s.
  577  712.06 to preserve the interest.
  578         Section 12. Section 720.403, Florida Statutes, is amended
  579  to read:
  580         720.403 Preservation of residential communities; revival of
  581  declaration of covenants.—
  582         (1) Consistent with required and optional elements of local
  583  comprehensive plans and other applicable provisions of the
  584  Community Planning Act, property owners homeowners are
  585  encouraged to preserve existing residential and other
  586  communities, promote available and affordable housing, protect
  587  structural and aesthetic elements of their residential
  588  community, and, as applicable, maintain roads and streets,
  589  easements, water and sewer systems, utilities, drainage
  590  improvements, conservation and open areas, recreational
  591  amenities, and other infrastructure and common areas that serve
  592  and support the residential community by the revival of a
  593  previous declaration of covenants and other governing documents
  594  that may have ceased to govern some or all parcels in the
  595  community.
  596         (2) In order to preserve a residential community and the
  597  associated infrastructure and common areas for the purposes
  598  described in this section, the parcel owners in a community that
  599  was previously subject to a declaration of covenants that has
  600  ceased to govern one or more parcels in the community may revive
  601  the declaration and the homeowners’ association for the
  602  community upon approval by the parcel owners to be governed
  603  thereby as provided in this act, and upon approval of the
  604  declaration and the other governing documents for the
  605  association by the Department of Economic Opportunity in a
  606  manner consistent with this act.
  607         (3) Part III of this chapter is intended to provide
  608  mechanisms for the revitalization of covenants or restrictions
  609  for all types of communities and property associations and is
  610  not limited to residential communities.
  611         Section 13. Section 720.404, Florida Statutes, is amended
  612  to read:
  613         720.404 Eligible residential communities; requirements for
  614  revival of declaration.—Parcel owners in a community are
  615  eligible to seek approval from the Department of Economic
  616  Opportunity to revive a declaration of covenants under this act
  617  if all of the following requirements are met:
  618         (1) All parcels to be governed by the revived declaration
  619  must have been once governed by a previous declaration that has
  620  ceased to govern some or all of the parcels in the community;
  621         (2) The revived declaration must be approved in the manner
  622  provided in s. 720.405(6); and
  623         (3) The revived declaration may not contain covenants that
  624  are more restrictive on the parcel owners than the covenants
  625  contained in the previous declaration, except that the
  626  declaration may:
  627         (a) Have an effective term of longer duration than the term
  628  of the previous declaration;
  629         (b) Omit restrictions contained in the previous
  630  declaration;
  631         (c) Govern fewer than all of the parcels governed by the
  632  previous declaration;
  633         (d) Provide for amendments to the declaration and other
  634  governing documents; and
  635         (e) Contain provisions required by this chapter for new
  636  declarations that were not contained in the previous
  637  declaration.
  638         Section 14. Subsections (1), (3), (5), and (6) of section
  639  720.405, Florida Statutes, are amended to read:
  640         720.405 Organizing committee; parcel owner approval.—
  641         (1) The proposal to revive a declaration of covenants and
  642  an a homeowners’ association for a community under the terms of
  643  this act shall be initiated by an organizing committee
  644  consisting of not less than three parcel owners located in the
  645  community that is proposed to be governed by the revived
  646  declaration. The name, address, and telephone number of each
  647  member of the organizing committee must be included in any
  648  notice or other document provided by the committee to parcel
  649  owners to be affected by the proposed revived declaration.
  650         (3) The organizing committee shall prepare the full text of
  651  the proposed articles of incorporation and bylaws of the revived
  652  homeowners’ association to be submitted to the parcel owners for
  653  approval, unless the association is then an existing
  654  corporation, in which case the organizing committee shall
  655  prepare the existing articles of incorporation and bylaws to be
  656  submitted to the parcel owners.
  657         (5) A copy of the complete text of the proposed revised
  658  declaration of covenants, the proposed new or existing articles
  659  of incorporation and bylaws of the homeowners’ association, and
  660  a graphic depiction of the property to be governed by the
  661  revived declaration shall be presented to all of the affected
  662  parcel owners by mail or hand delivery not less than 14 days
  663  before the time that the consent of the affected parcel owners
  664  to the proposed governing documents is sought by the organizing
  665  committee.
  666         (6) A majority of the affected parcel owners must agree in
  667  writing to the revived declaration of covenants and governing
  668  documents of the homeowners’ association or approve the revived
  669  declaration and governing documents by a vote at a meeting of
  670  the affected parcel owners noticed and conducted in the manner
  671  prescribed by s. 720.306. Proof of notice of the meeting to all
  672  affected owners of the meeting and the minutes of the meeting
  673  recording the votes of the property owners shall be certified by
  674  a court reporter or an attorney licensed to practice in the
  675  state.
  676         Section 15. Subsection (3) of section 720.407, Florida
  677  Statutes, is amended to read:
  678         720.407 Recording; notice of recording; applicability and
  679  effective date.—
  680         (3) The recorded documents shall include the full text of
  681  the approved declaration of covenants, the articles of
  682  incorporation and bylaws of the homeowners’ association, the
  683  letter of approval by the department, and the legal description
  684  of each affected parcel of property. For purposes of chapter
  685  712, the association is deemed to be and shall be indexed as the
  686  grantee in a title transaction and the parcel owners named in
  687  the revived declaration are deemed to be and shall be indexed as
  688  the grantors in the title transaction.
  689         Section 16. This act shall take effect October 1, 2018.

feedback