Bill Text: FL S1022 | 2020 | Regular Session | Introduced
Bill Title: Mobile Home Parks
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2020-03-14 - Died in Innovation, Industry, and Technology [S1022 Detail]
Download: Florida-2020-S1022-Introduced.html
Florida Senate - 2020 SB 1022
By Senator Rouson
19-01003-20 20201022__
1 A bill to be entitled
2 An act relating to mobile home parks; amending s.
3 723.004, F.S.; revising construction; amending s.
4 723.005, F.S.; revising the duties of the Division of
5 Florida Condominiums, Timeshares, and Mobile Homes of
6 the Department of Business and Professional Regulation
7 relating to mobile home parks; amending s. 723.006,
8 F.S.; expanding the duties of the division relating to
9 mobile home parks to include certification of certain
10 mobile home park operators; providing for renewal of
11 such certification; requiring the division to adopt
12 rules; amending s. 723.011, F.S.; revising
13 requirements relating to the delivery of a prospectus;
14 revising provisions relating to the adequacy of a
15 prospectus or offering circular; revising documents
16 that must be received by homeowners to include rental
17 agreements; requiring a park owner to provide
18 specified information to the division when more than
19 one prospectus is filed and approved for use in a
20 park; amending s. 723.012, F.S.; revising disclosures
21 that must be contained in a prospectus or offering
22 circular; amending s. 723.033, F.S.; making conforming
23 changes; prohibiting a court or arbitrators from
24 considering certain mobile home parks when determining
25 market rent; requiring a mediator, arbitrator, or
26 court to consider certain factors when determining
27 whether a rental amount is unreasonable; amending s.
28 723.037, F.S.; deleting provisions prohibiting park
29 owners from limiting comparable mobile home park
30 disclosures to certain mobile home parks; amending s.
31 723.038, F.S.; conforming a provision to changes made
32 by the act; amending s. 723.0381, F.S.; authorizing
33 either party to submit a rent dispute to the division
34 for binding arbitration; providing procedures and
35 requirements for such binding arbitration; authorizing
36 either party to file an action in circuit court to
37 resolve a rent dispute if binding arbitration is not
38 elected within a specified timeframe; requiring a
39 circuit court action to be filed within a specified
40 timeframe; authorizing the division to adopt rules;
41 amending s. 723.061, F.S.; requiring that an eviction
42 notice be provided to the division and the executive
43 director of the Florida Mobile Home Relocation
44 Corporation within a specified timeframe; amending s.
45 723.068, F.S.; conforming a provision to changes made
46 by the act; amending s. 723.076, F.S.; requiring
47 homeowners’ associations to notify park owners upon
48 the election or appointment of new officers or
49 members; amending s. 723.078, F.S.; revising
50 requirements for board elections and ballots;
51 requiring an impartial committee to be responsible for
52 overseeing the election process and complying with
53 ballot requirements; defining the term “impartial
54 committee”; requiring that association bylaws provide
55 a method for determining the winner of an election in
56 which two or more candidates receive the same number
57 of votes; prohibiting certain persons from seeking
58 election to a board and from being eligible for board
59 membership; specifying that actions taken by a board
60 are not invalid because a member is later determined
61 to be ineligible for board membership; requiring the
62 division to adopt rules; expanding the types of
63 meetings that are not required to be open to members;
64 making technical changes; providing an exception to a
65 provision requiring an officer of an association to
66 provide an affidavit affirming certain information;
67 providing that the minutes of certain board and
68 committee meetings are privileged and confidential;
69 conforming provisions to changes made by the act;
70 amending s. 723.079, F.S.; revising homeowners’
71 association recordkeeping requirements; revising the
72 timeframe for which records are required to be made
73 available for inspection or photocopying; capping the
74 amount of damages for which an association is liable
75 when a member is denied access to official records;
76 requiring that certain disputes be submitted to
77 mandatory binding arbitration with the division;
78 amending s. 723.1255, F.S.; requiring that certain
79 disputes be submitted to mandatory binding arbitration
80 with the division; providing requirements for such
81 arbitration; requiring the division to adopt rules;
82 providing an effective date.
83
84 Be It Enacted by the Legislature of the State of Florida:
85
86 Section 1. Subsection (5) of section 723.004, Florida
87 Statutes, is amended to read:
88 723.004 Legislative intent; preemption of subject matter.—
89 (5) Nothing in this chapter shall be construed to prevent
90 the enforcement of a right or duty under this section, s.
91 723.022, s. 723.023, s. 723.031, s. 723.032, s. 723.033, s.
92 723.035, s. 723.037, s. 723.038, s. 723.061, s. 723.0615, s.
93 723.062, s. 723.063, or s. 723.081 by civil action, or under s.
94 723.033 by binding arbitration, after the party has exhausted
95 its administrative remedies, if any.
96 Section 2. Section 723.005, Florida Statutes, is amended to
97 read:
98 723.005 Regulation by division.—The division has the power
99 and duty to enforce and ensure compliance with the provisions of
100 this chapter and rules promulgated pursuant hereto relating to
101 the rental, development, and sale of mobile home parks. However,
102 the division does not have the power or duty to enforce mobile
103 home park rules and regulations or to enforce the provisions of
104 ss. 723.022, 723.023, and 723.033.
105 Section 3. Subsection (16) is added to section 723.006,
106 Florida Statutes, to read:
107 723.006 Powers and duties of division.—In performing its
108 duties, the division has the following powers and duties:
109 (16) The division must certify that an operator of a mobile
110 home park which also has the authority to manage such park is
111 competent in the provisions of this chapter and the rules
112 adopted thereunder. Upon certification, the division must issue
113 a certificate to the operator, and the operator must post the
114 certificate in a public place within the park or community
115 office. The certification must be renewed every 2 years. The
116 division must adopt rules to implement this subsection.
117 Section 4. Section 723.011, Florida Statutes, is amended to
118 read:
119 723.011 Disclosure before prior to rental of a mobile home
120 lot; prospectus, offering circular, filing, approval.—
121 (1)(a) In a mobile home park containing 26 or more lots,
122 the park owner shall file a prospectus with the division. Before
123 Prior to entering into an enforceable rental agreement for a
124 mobile home lot, the park owner shall deliver to the homeowner
125 or prospective homeowner the initial a prospectus approved by
126 the division and all amendments to such prospectus which are
127 filed with the division for the lot. If the park owner has
128 prepared an integrated prospectus, it must be approved by the
129 division before the park owner may distribute it to the
130 homeowners. This subsection does not invalidate those lot rental
131 agreements for which an approved prospectus was required to be
132 delivered and which was delivered on or before July 1, 1986, if
133 the mobile home park owner had:
134 1. Filed a prospectus with the division prior to entering
135 into the lot rental agreement;
136 2. Made a good faith effort to correct deficiencies cited
137 by the division by responding within the time limit set by the
138 division, if one was set; and
139 3. Delivered the approved prospectus to the mobile home
140 owner within 45 days of approval by the division.
141
142 This paragraph does not preclude the finding that a lot rental
143 agreement is invalid on other grounds and does not limit any
144 rights of a mobile home owner or preclude a mobile home owner
145 from seeking any remedies allowed by this chapter, including a
146 determination that the lot rental agreement or any part thereof
147 is unreasonable.
148 (b) The division shall determine whether the proposed
149 prospectus or offering circular is adequate to meet the
150 requirements of this chapter and shall notify the park owner by
151 mail, within 45 days after receipt of the document, that the
152 division has found that the prospectus or offering circular is
153 adequate or has found specified deficiencies that are a direct
154 violation of this chapter. If the division does not make either
155 finding within 45 days, the prospectus or offering circular is
156 considered to be shall be deemed to have been found adequate.
157 (c)1. Filings for mobile home parks in which lots have not
158 been offered for lease prior to June 4, 1984, shall be
159 accompanied by a filing fee of $10 per lot offered for lease by
160 the park owner; however, the fee shall not be less than $100.
161 2. Filings for mobile home parks in which lots have been
162 offered for lease before prior to the effective date of this
163 chapter shall be accompanied by a filing fee as follows:
164 a. For a park in which there are 26-50 lots: $100.
165 b. For a park in which there are 51-100 lots: $150.
166 c. For a park in which there are 101-150 lots: $200.
167 d. For a park in which there are 151-200 lots: $250.
168 e. For a park in which there are 201 or more lots: $300.
169 (d) The division shall maintain copies of each prospectus
170 and all amendments to each prospectus which are considered
171 adequate by the division. The division shall provide copies of
172 documents requested in writing under this subsection within 10
173 days after the written request is received.
174 (2) The park owner shall furnish a copy of the prospectus
175 or offering circular together with all of the exhibits thereto
176 to each prospective lessee. Delivery shall be made prior to
177 execution of the lot rental agreement or at the time of
178 occupancy, whichever occurs first. Upon delivery of a prospectus
179 to a prospective lessee, the lot rental agreement is voidable by
180 the lessee for a period of 15 days. However, the park owner is
181 not required to furnish a copy of the prospectus or offering
182 circular if the tenancy is a renewal of a tenancy and the mobile
183 home owner has previously received the prospectus or offering
184 circular.
185 (3) The prospectus or offering circular together with its
186 exhibits is a disclosure document intended to afford protection
187 to homeowners and prospective homeowners in the mobile home
188 park. The purpose of the document is to disclose the
189 representations of the mobile home park owner concerning the
190 operations of the mobile home park.
191 (4) With regard to a tenancy in existence on the effective
192 date of this chapter, the prospectus or offering circular
193 offered by the mobile home park owner shall contain the same
194 terms and conditions as rental agreements offered to all other
195 mobile home owners residing in the park on the effective date of
196 this act, excepting only rent variations based upon lot location
197 and size, and shall not require any mobile home owner to install
198 any permanent improvements.
199 (5) The mobile home park owner may request that the
200 homeowner sign a receipt indicating that the homeowner has
201 received a copy of the prospectus, the rules and regulations,
202 the rental agreement, and other pertinent documents so long as
203 any such documents are clearly identified in the receipt itself.
204 Such a receipt shall indicate nothing more than that the
205 documents identified herein have been received by the mobile
206 home owner. The receipt, if requested, shall be signed at the
207 time of delivery of the identified documents. If the homeowner
208 refuses to sign the receipt, the park owner shall still deliver
209 to the homeowner a copy of the prospectus, rules and
210 regulations, rental agreement, and any other pertinent documents
211 which otherwise would have been delivered upon execution of the
212 receipt. However, the homeowner shall thereafter be barred from
213 claiming that the park owner has failed to deliver such
214 documents. The refusal of the homeowner to sign the receipt
215 shall under no circumstances constitute a ground for eviction of
216 the homeowner or of a mobile home or for the imposition of any
217 other penalty.
218 (6) If more than one prospectus is filed and approved for
219 use in the park, the park owner must inform the division which
220 prospectus applies to each lot as follows:
221 (a) If known at the time of filing, the information must be
222 stated in the appropriate spaces on the Park Owner Prospectus
223 Filing Statement.
224 (b) If the park owner does not know at the time of filing
225 which prospectus will be delivered to each lot, or if the
226 information provided in the Park Owner Prospectus Filing
227 Statement changes after filing, the park owner must, no later
228 than March 1 and September 1 of each year, submit a listing of
229 each lot number to the division with the corresponding
230 prospectus identification number assigned by the division. If
231 there have been no changes from the previous report, no
232 additional notification is required.
233 Section 5. Paragraph (b) of subsection (9) of section
234 723.012, Florida Statutes, is amended to read:
235 723.012 Prospectus or offering circular.—The prospectus or
236 offering circular, which is required to be provided by s.
237 723.011, must contain the following information:
238 (9) An explanation of the manner in which the lot rental
239 amount will be raised, including, but not limited to:
240 (b) Disclosure of any factors that which may affect the lot
241 rental amount, if applicable, including, but not limited to:
242 1. Water rates.
243 2. Sewer rates.
244 3. Waste disposal rates.
245 4. Maintenance costs, including costs of deferred
246 maintenance.
247 5. Management costs.
248 6. Property taxes.
249 7. Major repairs or improvements.
250 8. Any other fees, costs, entrance fees, or charges to
251 which the mobile home owner may be subjected.
252 Section 6. Subsections (1), (2), (5), and (6) of section
253 723.033, Florida Statutes, are amended to read:
254 723.033 Unreasonable lot rental agreements; increases,
255 changes.—
256 (1) If the court, or the arbitrators in a binding
257 arbitration under s. 723.0381(1), as a matter of law, find finds
258 a mobile home lot rental amount, rent increase, or change, or
259 any provision of the rental agreement, to be unreasonable, the
260 court or arbitrators may:
261 (a) Refuse to enforce the lot rental agreement.
262 (b) Refuse to enforce the rent increase or change.
263 (c) Enforce the remainder of the lot rental agreement
264 without the unreasonable provision.
265 (d) Limit the application of the unreasonable provision so
266 as to avoid any unreasonable result.
267 (e) Award a refund or a reduction in future rent payments.
268 (f) Award such other equitable relief as deemed necessary.
269 (2) When it is claimed or appears to the court or
270 arbitrators that a lot rental amount, rent increase, or change,
271 or any provision thereof, may be unreasonable, the parties shall
272 be afforded a reasonable opportunity to present evidence as to
273 its meaning and purpose, the relationship of the parties, and
274 other relevant factors to aid the court or arbitrators in making
275 the determination.
276 (5) In determining market rent, the court or arbitrators
277 may consider rents charged by comparable mobile home parks in
278 its competitive area. To be comparable, a mobile home park must
279 offer similar facilities, services, amenities, and management.
280 Mobile home parks in this state owned or controlled by the
281 subject park owner and any mobile home parks that have been
282 purchased or sold within 12 months before the effective date of
283 the increase in lot rental amount may not be considered to be a
284 comparable park for the purposes of this subsection.
285 (6) In determining whether a rent increase or resulting lot
286 rental amount is unreasonable, the mediator, arbitrator, or
287 court shall may consider economic or other factors, including,
288 but not limited to, increases or decreases in the Consumer Price
289 Index for Urban Wage Earners and Clerical Workers, published by
290 the Bureau of Labor Statistics of the Department of Labor;
291 increases or decreases in operating costs or taxes; and prior
292 disclosures.
293 Section 7. Paragraph (b) of subsection (4) of section
294 723.037, Florida Statutes, is amended to read:
295 723.037 Lot rental increases; reduction in services or
296 utilities; change in rules and regulations; mediation.—
297 (4)
298 (b)1. At the meeting, the park owner or subdivision
299 developer shall in good faith disclose and explain all material
300 factors resulting in the decision to increase the lot rental
301 amount, reduce services or utilities, or change rules and
302 regulations, including how those factors justify the specific
303 change proposed. The park owner or subdivision developer may not
304 limit the discussion of the reasons for the change to
305 generalities only, such as, but not limited to, increases in
306 operational costs, changes in economic conditions, or rents
307 charged by comparable mobile home parks. For example, if the
308 reason for an increase in lot rental amount is an increase in
309 operational costs, the park owner must disclose the item or
310 items which have increased, the amount of the increase, any
311 similar item or items which have decreased, and the amount of
312 the decrease. If an increase is based upon the lot rental amount
313 charged by comparable mobile home parks, the park owner shall
314 disclose, and provide in writing to the committee at or before
315 the meeting, the name, address, lot rental amount, and any other
316 relevant factors relied upon by the park owner, such as
317 facilities, services, and amenities, concerning the comparable
318 mobile home parks. The information concerning comparable mobile
319 home parks to be exchanged by the parties is to encourage a
320 dialogue concerning the reasons used by the park owner for the
321 increase in lot rental amount and to encourage the home owners
322 to evaluate and discuss the reasons for those changes with the
323 park owner. The park owner shall prepare a written summary of
324 the material factors and retain a copy for 3 years. The park
325 owner shall provide the committee a copy of the summary at or
326 before the meeting.
327 2. The park owner shall not limit the comparable mobile
328 home park disclosure to those mobile home parks that are owned
329 or operated by the same owner or operator as the subject park,
330 except in certain circumstances, which include, but are not
331 limited to:
332 a. That the market area for comparable mobile home parks
333 includes mobile home parks owned or operated by the same entity
334 that have similar facilities, services, and amenities;
335 b. That the subject mobile home park has unique attributes
336 that are shared with similar mobile home parks;
337 c. That the mobile home park is located in a geographic or
338 market area that contains few comparable mobile home parks; or
339 d. That there are similar considerations or factors that
340 would be considered in such a market analysis by a competent
341 professional and would be considered in determining the
342 valuation of the market rent.
343
344 This subsection is not intended to be enforced by civil or
345 administrative action. Rather, the meetings and discussions are
346 intended to be in the nature of settlement discussions prior to
347 the parties proceeding to mediation of any dispute.
348 Section 8. Subsection (6) of section 723.038, Florida
349 Statutes, is amended to read:
350 723.038 Dispute settlement; mediation.—
351 (6) No resolution arising from a mediation proceeding as
352 provided for in s. 723.037 or this section shall be deemed final
353 agency action. Any party, however, may initiate an action in the
354 circuit court, or for binding arbitration for rent disputes, to
355 enforce a resolution or agreement arising from a mediation
356 proceeding which has been reduced to writing. The court shall
357 consider such resolution or agreement to be a contract for the
358 purpose of providing a remedy to the complaining party.
359 Section 9. Section 723.0381, Florida Statutes, is amended
360 to read:
361 723.0381 Civil actions; arbitration.—
362 (1) After mediation of a dispute pursuant to s. 723.038 has
363 failed to provide a resolution of the dispute, either party may
364 file an action in the circuit court or elect to submit the rent
365 dispute to the division for binding arbitration.
366 (a) If a party elects for binding arbitration:
367 1. A request for arbitration must be filed with the
368 division within 60 days after the date of the mediator’s notice
369 to the division that the mediation has concluded.
370 2. An action to resolve the rent dispute may not be filed
371 in the circuit court.
372 3. Notwithstanding s. 723.037(1) and (5)(a), a homeowners’
373 association is not required to obtain majority consent from the
374 homeowners to submit the rent dispute to binding arbitration
375 pursuant to this section and the homeowners’ association has
376 standing regardless of whether it chooses to obtain permission
377 from the majority of the homeowners.
378 4. If a homeowners’ association or park owner elects for
379 binding arbitration, the arbitration procedure must be in
380 accordance with the arbitration procedures established for
381 recalls under s. 723.1255. A notice of election for binding
382 arbitration must be served on the opposing party within 10 days
383 from the date of filing such notice with the division.
384 5. Notwithstanding any other provision of this section,
385 once a party files an election to proceed with binding
386 arbitration, the parties may, by mutual agreement, select two
387 additional arbitrators to sit with the division’s arbitrator and
388 hear the presentations of the parties. If the parties agree to
389 add two additional arbitrators, a decision on the rent dispute
390 must be by majority vote of the three arbitrators. If the
391 parties do not agree to add two additional arbitrators, a
392 decision on the rent dispute must be made solely by the
393 division’s arbitrator. The decision rendered by the arbitrator
394 or arbitrators is final and binding upon the parties and
395 enforceable in the circuit court as a contract.
396 6. Each party is responsible for paying its own attorney
397 fees, expert and investigator fees, and other associated costs.
398 The cost of the arbitrators must be divided equally between the
399 parties regardless of the outcome.
400 7. If the homeowners’ association or the park owner does
401 not elect for binding arbitration within the time period
402 specified, either party may file an action in circuit court
403 pursuant to this section.
404 (b) If a party elects to file an action in the circuit
405 court:
406 1. The action must be filed within 60 days after the date
407 of the mediator’s notice to the division that the mediation has
408 concluded.
409 2.(2) The court may refer the action to nonbinding
410 arbitration pursuant to s. 44.103 and the Florida Rules of Civil
411 Procedure. The court shall order the hearing to be held
412 informally with presentation of testimony kept to a minimum and
413 matters presented to the arbitrators primarily through the
414 statements and arguments of counsel. The court shall assess the
415 parties equally to pay the compensation awarded to the
416 arbitrators if neither party requests a trial de novo. If a
417 party has filed for a trial de novo, the party shall be assessed
418 the arbitration costs, court costs, and other reasonable costs
419 of the opposing party, including attorney’s fees, investigation
420 expenses, and expenses for expert or other testimony or evidence
421 incurred after the arbitration hearing if the judgment upon the
422 trial de novo is not more favorable than the arbitration
423 decision. If subsequent to arbitration a party files for a trial
424 de novo, the arbitration decision may be made known to the judge
425 only after he or she has entered his or her order on the merits.
426 (2) The division may adopt rules to facilitate the option
427 of binding arbitration under this section.
428 Section 10. Paragraph (d) of subsection (1) of section
429 723.061, Florida Statutes, is amended to read:
430 723.061 Eviction; grounds, proceedings.—
431 (1) A mobile home park owner may evict a mobile home owner,
432 a mobile home tenant, a mobile home occupant, or a mobile home
433 only on one or more of the following grounds:
434 (d) Change in use of the land comprising the mobile home
435 park, or the portion thereof from which mobile homes are to be
436 evicted, from mobile home lot rentals to some other use, if:
437 1. The park owner gives written notice to the homeowners’
438 association formed and operating under ss. 723.075-723.079 of
439 its right to purchase the mobile home park, if the land
440 comprising the mobile home park is changing use from mobile home
441 lot rentals to a different use, at the price and under the terms
442 and conditions set forth in the written notice.
443 a. The notice shall be delivered to the officers of the
444 homeowners’ association by United States mail. Within 45 days
445 after the date of mailing of the notice, the homeowners’
446 association may execute and deliver a contract to the park owner
447 to purchase the mobile home park at the price and under the
448 terms and conditions set forth in the notice. If the contract
449 between the park owner and the homeowners’ association is not
450 executed and delivered to the park owner within the 45-day
451 period, the park owner is under no further obligation to the
452 homeowners’ association except as provided in sub-subparagraph
453 b.
454 b. If the park owner elects to offer or sell the mobile
455 home park at a price lower than the price specified in her or
456 his initial notice to the officers of the homeowners’
457 association, the homeowners’ association has an additional 10
458 days to meet the revised price, terms, and conditions of the
459 park owner by executing and delivering a revised contract to the
460 park owner.
461 c. The park owner is not obligated under this subparagraph
462 or s. 723.071 to give any other notice to, or to further
463 negotiate with, the homeowners’ association for the sale of the
464 mobile home park to the homeowners’ association after 6 months
465 after the date of the mailing of the initial notice under sub
466 subparagraph a.
467 2. The park owner gives the affected mobile home owners and
468 tenants at least 6 months’ notice of the eviction due to the
469 projected change in use and of their need to secure other
470 accommodations. Within 20 days after giving an eviction notice
471 to a mobile home owner, the park owner must provide the division
472 with a copy of the notice and the division must provide the
473 executive director of the Florida Mobile Home Relocation
474 Corporation with a copy of each notice.
475 a. The notice of eviction due to a change in use of the
476 land must include in a font no smaller than the body of the
477 notice the following statement:
478
479 YOU MAY BE ENTITLED TO COMPENSATION FROM THE FLORIDA
480 MOBILE HOME RELOCATION TRUST FUND, ADMINISTERED BY THE
481 FLORIDA MOBILE HOME RELOCATION CORPORATION (FMHRC).
482 FMHRC CONTACT INFORMATION IS AVAILABLE FROM THE
483 FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL
484 REGULATION.
485
486 b. The park owner may not give a notice of increase in lot
487 rental amount within 90 days before giving notice of a change in
488 use.
489 Section 11. Section 723.068, Florida Statutes, is amended
490 to read:
491 723.068 Attorney Attorney’s fees.—Except as provided in ss.
492 s. 723.037 and 723.0381(1), in any proceeding between private
493 parties to enforce provisions of this chapter, the prevailing
494 party is entitled to a reasonable attorney fees attorney’s fee.
495 Section 12. Subsection (1) of section 723.076, Florida
496 Statutes, is amended to read:
497 723.076 Incorporation; notification of park owner.—
498 (1) Upon receipt of its certificate of incorporation, the
499 homeowners’ association shall notify the park owner in writing
500 of such incorporation and shall advise the park owner of the
501 names and addresses of the officers of the homeowners’
502 association by personal delivery upon the park owner’s
503 representative as designated in the prospectus or by certified
504 mail, return receipt requested. Thereafter, the homeowners’
505 association shall notify the park owner in writing by certified
506 mail, return receipt requested, of any change of names and
507 addresses of its president or registered agent. Upon election or
508 appointment of new officers or members, the homeowners’
509 association shall notify the park owner in writing by certified
510 mail, return receipt requested, of the names and addresses of
511 the new officers or members.
512 Section 13. Paragraphs (b) through (e) of subsection (2) of
513 section 723.078, Florida Statutes, are amended, and paragraph
514 (i) of that subsection is reenacted, to read:
515 723.078 Bylaws of homeowners’ associations.—
516 (2) The bylaws shall provide and, if they do not, shall be
517 deemed to include, the following provisions:
518 (b) Quorum; voting requirements; proxies.—
519 1. Unless otherwise provided in the bylaws, 30 percent of
520 the total membership is required to constitute a quorum.
521 Decisions shall be made by a majority of members represented at
522 a meeting at which a quorum is present.
523 2.a. A member may not vote by general proxy but may vote by
524 limited proxies substantially conforming to a limited proxy form
525 adopted by the division. Limited proxies and general proxies may
526 be used to establish a quorum. Limited proxies may be used for
527 votes taken to amend the articles of incorporation or bylaws
528 pursuant to this section, and any other matters for which this
529 chapter requires or permits a vote of members. A, except that no
530 proxy, limited or general, may not be used in the election of
531 board members in general elections or elections to fill
532 vacancies caused by recall, resignation, or otherwise. Board
533 members must be elected by written ballot or by voting in
534 person. If a mobile home or subdivision lot is owned jointly,
535 the owners of the mobile home or subdivision lot must be counted
536 as one for the purpose of determining the number of votes
537 required for a majority. Only one vote per mobile home or
538 subdivision lot shall be counted. Any number greater than 50
539 percent of the total number of votes constitutes a majority.
540 Notwithstanding this section, members may vote in person at
541 member meetings or by secret ballot, including absentee ballots,
542 as defined by the division.
543 b. Elections shall be decided by a plurality of the ballots
544 cast. There is no quorum requirement; however, at least 20
545 percent of the eligible voters must cast a ballot in order to
546 have a valid election. A member may not allow any other person
547 to cast his or her ballot, and any ballots improperly cast are
548 invalid. An election is not required unless there are more
549 candidates nominated than vacancies that exist on the board.
550 c. Each member or other eligible person who desires to be a
551 candidate for the board of directors shall appear on the ballot
552 in alphabetical order by surname. A ballot may not indicate if
553 any of the candidates are incumbent on the board. All ballots
554 must be uniform in appearance. Write-in candidates and more than
555 one vote per candidate per ballot are not allowed. A ballot may
556 not provide a space for the signature of, or any other means of
557 identifying, a voter. If a ballot contains more votes than
558 vacancies or fewer votes than vacancies, the ballot is invalid
559 unless otherwise stated in the bylaws.
560 d. An impartial committee shall be responsible for
561 overseeing the election process and complying with all ballot
562 requirements. For purposes of this section, the term “impartial
563 committee” means a committee whose members do not include any of
564 the following people or their spouses:
565 (I) Current board members.
566 (II) Current association officers.
567 (III) Candidates for the association or board.
568 e. The association bylaws shall provide a method for
569 determining the winner of an election in which two or more
570 candidates for the same position receive the same number of
571 votes.
572 f. A person who has been convicted of a felony in this
573 state or in a United States District or Territorial Court, or
574 who has been convicted of any offense in another jurisdiction
575 which would be considered a felony if committed in this state,
576 may not seek election to the board and is not eligible for board
577 membership unless the person’s civil rights have been restored
578 for at least 5 years before the date on which the person seeks
579 election to the board. The validity of an action taken by the
580 board is not affected if it is later determined that a member of
581 the board is ineligible for board membership.
582 g. The division shall adopt procedural rules to govern
583 elections, including, but not limited to, rules for providing
584 notice by electronic transmission and rules for maintaining the
585 secrecy of ballots.
586 3. A proxy is effective only for the specific meeting for
587 which originally given and any lawfully adjourned meetings
588 thereof. In no event shall any proxy be valid for a period
589 longer than 90 days after the date of the first meeting for
590 which it was given. Every proxy shall be revocable at any time
591 at the pleasure of the member executing it.
592 4. A member of the board of directors or a committee may
593 submit in writing his or her agreement or disagreement with any
594 action taken at a meeting that the member did not attend. This
595 agreement or disagreement may not be used as a vote for or
596 against the action taken and may not be used for the purposes of
597 creating a quorum.
598 (c) Board of directors’ and committee meetings.—
599 1. Meetings of the board of directors and meetings of its
600 committees at which a quorum is present shall be open to all
601 members. Notwithstanding any other provision of law, the
602 requirement that board meetings and committee meetings be open
603 to the members does not apply to meetings between the park owner
604 and the board of directors or any of the board’s committees,
605 board or committee meetings held for the purpose of discussing
606 personnel matters or meetings between the board or a committee
607 and the association’s attorney, with respect to potential or
608 pending litigation, when where the meeting is held for the
609 purpose of seeking or rendering legal advice, and when where the
610 contents of the discussion would otherwise be governed by the
611 attorney-client privilege. Notice of all meetings open to
612 members shall be posted in a conspicuous place upon the park
613 property at least 48 hours in advance, except in an emergency.
614 Notice of any meeting in which dues assessments against members
615 are to be considered for any reason shall specifically contain a
616 statement that dues assessments will be considered and the
617 nature of such dues assessments.
618 2. A board or committee member’s participation in a meeting
619 via telephone, real-time videoconferencing, or similar real-time
620 telephonic, electronic, or video communication counts toward a
621 quorum, and such member may vote as if physically present. A
622 speaker shall be used so that the conversation of those board or
623 committee members attending by telephone may be heard by the
624 board or committee members attending in person, as well as by
625 members present at a meeting.
626 3. Members of the board of directors may use e-mail as a
627 means of communication but may not cast a vote on an association
628 matter via e-mail.
629 4. The right to attend meetings of the board of directors
630 and its committees includes the right to speak at such meetings
631 with reference to all designated agenda items. The association
632 may adopt reasonable written rules governing the frequency,
633 duration, and manner of members’ statements. Any item not
634 included on the notice may be taken up on an emergency basis by
635 at least a majority plus one of the members of the board. Such
636 emergency action shall be noticed and ratified at the next
637 regular meeting of the board. Any member may tape record or
638 videotape meetings of the board of directors and its committees,
639 except meetings between the board of directors or its appointed
640 homeowners’ committee and the park owner. The division shall
641 adopt reasonable rules governing the tape recording and
642 videotaping of the meeting.
643 5. Except as provided in paragraph (i), a vacancy occurring
644 on the board of directors may be filled by the affirmative vote
645 of the majority of the remaining directors, even though the
646 remaining directors constitute less than a quorum; by the sole
647 remaining director; if the vacancy is not so filled or if no
648 director remains, by the members; or, on the application of any
649 person, by the circuit court of the county in which the
650 registered office of the corporation is located.
651 6. The term of a director elected or appointed to fill a
652 vacancy expires at the next annual meeting at which directors
653 are elected. A directorship to be filled by reason of an
654 increase in the number of directors may be filled by the board
655 of directors, but only for the term of office continuing until
656 the next election of directors by the members.
657 7. A vacancy that will occur at a specific later date, by
658 reason of a resignation effective at a later date, may be filled
659 before the vacancy occurs. However, the new director may not
660 take office until the vacancy occurs.
661 8.a. The officers and directors of the association have a
662 fiduciary relationship to the members.
663 b. A director and committee member shall discharge his or
664 her duties in good faith, with the care an ordinarily prudent
665 person in a like position would exercise under similar
666 circumstances, and in a manner he or she reasonably believes to
667 be in the best interests of the corporation.
668 9. In discharging his or her duties, a director may rely on
669 information, opinions, reports, or statements, including
670 financial statements and other financial data, if prepared or
671 presented by:
672 a. One or more officers or employees of the corporation who
673 the director reasonably believes to be reliable and competent in
674 the matters presented;
675 b. Legal counsel, public accountants, or other persons as
676 to matters the director reasonably believes are within the
677 persons’ professional or expert competence; or
678 c. A committee of the board of directors of which he or she
679 is not a member if the director reasonably believes the
680 committee merits confidence.
681 10. A director is not acting in good faith if he or she has
682 knowledge concerning the matter in question that makes reliance
683 otherwise permitted by subparagraph 9. unwarranted.
684 11. A director is not liable for any action taken as a
685 director, or any failure to take any action, if he or she
686 performed the duties of his or her office in compliance with
687 this section.
688 (d) Member meetings.—Members shall meet at least once each
689 calendar year, and the meeting shall be the annual meeting. All
690 members of the board of directors shall be elected at the annual
691 meeting unless the bylaws provide for staggered election terms
692 or for their election at another meeting. The bylaws shall not
693 restrict any member desiring to be a candidate for board
694 membership from being nominated from the floor. All nominations
695 from the floor must be made at a duly noticed meeting of the
696 members held at least 27 30 days before the annual meeting. The
697 bylaws shall provide the method for calling the meetings of the
698 members, including annual meetings. The method shall provide at
699 least 14 days’ written notice to each member in advance of the
700 meeting and require the posting in a conspicuous place on the
701 park property of a notice of the meeting at least 14 days prior
702 to the meeting. The right to receive written notice of
703 membership meetings may be waived in writing by a member. Unless
704 waived, the notice of the annual meeting shall be mailed, hand
705 delivered, or electronically transmitted to each member, and
706 shall constitute notice. Unless otherwise stated in the bylaws,
707 an officer of the association shall provide an affidavit
708 affirming that the notices were mailed, or hand delivered, or
709 provided by electronic transmission in accordance with the
710 provisions of this section to each member at the address last
711 furnished to the corporation. These meeting requirements do not
712 prevent members from waiving notice of meetings or from acting
713 by written agreement without meetings, if allowed by the bylaws.
714 (e) Minutes of meetings.—
715 1. Notwithstanding any other provision of law, the minutes
716 of board or committee meetings that are closed to members are
717 privileged and confidential and are not available for inspection
718 or photocopying.
719 2. Minutes of all meetings of members of an association and
720 meetings open for members of, the board of directors, and a
721 committee must be maintained in written form and approved by the
722 members, board, or committee, as applicable. A vote or
723 abstention from voting on each matter voted upon for each
724 director present at a board meeting must be recorded in the
725 minutes.
726 3.2. All approved minutes of open meetings of members,
727 committees, and the board of directors shall be kept in a
728 businesslike manner and shall be available for inspection by
729 members, or their authorized representatives, and board members
730 at reasonable times. The association shall retain these minutes
731 within this state for a period of at least 5 7 years.
732 (i) Recall of board members.—Any member of the board of
733 directors may be recalled and removed from office with or
734 without cause by the vote of or agreement in writing by a
735 majority of all members. A special meeting of the members to
736 recall a member or members of the board of directors may be
737 called by 10 percent of the members giving notice of the meeting
738 as required for a meeting of members, and the notice shall state
739 the purpose of the meeting. Electronic transmission may not be
740 used as a method of giving notice of a meeting called in whole
741 or in part for this purpose.
742 1. If the recall is approved by a majority of all members
743 by a vote at a meeting, the recall is effective as provided in
744 this paragraph. The board shall duly notice and hold a board
745 meeting within 5 full business days after the adjournment of the
746 member meeting to recall one or more board members. At the
747 meeting, the board shall either certify the recall, in which
748 case such member or members shall be recalled effective
749 immediately and shall turn over to the board within 5 full
750 business days any and all records and property of the
751 association in their possession, or shall proceed under
752 subparagraph 3.
753 2. If the proposed recall is by an agreement in writing by
754 a majority of all members, the agreement in writing or a copy
755 thereof shall be served on the association by certified mail or
756 by personal service in the manner authorized by chapter 48 and
757 the Florida Rules of Civil Procedure. The board of directors
758 shall duly notice and hold a meeting of the board within 5 full
759 business days after receipt of the agreement in writing. At the
760 meeting, the board shall either certify the written agreement to
761 recall members of the board, in which case such members shall be
762 recalled effective immediately and shall turn over to the board,
763 within 5 full business days, any and all records and property of
764 the association in their possession, or shall proceed as
765 described in subparagraph 3.
766 3. If the board determines not to certify the written
767 agreement to recall members of the board, or does not certify
768 the recall by a vote at a meeting, the board shall, within 5
769 full business days after the board meeting, file with the
770 division a petition for binding arbitration pursuant to the
771 procedures of s. 723.1255. For purposes of this paragraph, the
772 members who voted at the meeting or who executed the agreement
773 in writing shall constitute one party under the petition for
774 arbitration. If the arbitrator certifies the recall of a member
775 of the board, the recall shall be effective upon mailing of the
776 final order of arbitration to the association. If the
777 association fails to comply with the order of the arbitrator,
778 the division may take action under s. 723.006. A member so
779 recalled shall deliver to the board any and all records and
780 property of the association in the member’s possession within 5
781 full business days after the effective date of the recall.
782 4. If the board fails to duly notice and hold a board
783 meeting within 5 full business days after service of an
784 agreement in writing or within 5 full business days after the
785 adjournment of the members’ recall meeting, the recall shall be
786 deemed effective and the board members so recalled shall
787 immediately turn over to the board all records and property of
788 the association.
789 5. If the board fails to duly notice and hold the required
790 meeting or fails to file the required petition, the member’s
791 representative may file a petition pursuant to s. 723.1255
792 challenging the board’s failure to act. The petition must be
793 filed within 60 days after expiration of the applicable 5-full
794 business-day period. The review of a petition under this
795 subparagraph is limited to the sufficiency of service on the
796 board and the facial validity of the written agreement or
797 ballots filed.
798 6. If a vacancy occurs on the board as a result of a recall
799 and less than a majority of the board members are removed, the
800 vacancy may be filled by the affirmative vote of a majority of
801 the remaining directors, notwithstanding any other provision of
802 this chapter. If vacancies occur on the board as a result of a
803 recall and a majority or more of the board members are removed,
804 the vacancies shall be filled in accordance with procedural
805 rules to be adopted by the division, which rules need not be
806 consistent with this chapter. The rules must provide procedures
807 governing the conduct of the recall election as well as the
808 operation of the association during the period after a recall
809 but before the recall election.
810 7. A board member who has been recalled may file a petition
811 pursuant to s. 723.1255 challenging the validity of the recall.
812 The petition must be filed within 60 days after the recall is
813 deemed certified. The association and the member’s
814 representative shall be named as the respondents.
815 8. The division may not accept for filing a recall
816 petition, whether or not filed pursuant to this subsection, and
817 regardless of whether the recall was certified, when there are
818 60 or fewer days until the scheduled reelection of the board
819 member sought to be recalled or when 60 or fewer days have not
820 elapsed since the election of the board member sought to be
821 recalled.
822 Section 14. Paragraphs (d) and (f) through (i) of
823 subsection (4) and subsection (5) of section 723.079, Florida
824 Statutes, are amended to read:
825 723.079 Powers and duties of homeowners’ association.—
826 (4) The association shall maintain the following items,
827 when applicable, which constitute the official records of the
828 association:
829 (d) The approved minutes of all meetings of the members of
830 an association and meetings open for members of, the board of
831 directors, and committees of the board, which minutes must be
832 retained within this the state for at least 5 7 years.
833 (f) All of the association’s insurance policies or copies
834 thereof, which must be retained within this state for at least 5
835 7 years after the expiration date of the policy.
836 (g) A copy of all contracts or agreements to which the
837 association is a party, including, without limitation, any
838 written agreements with the park owner, lease, or other
839 agreements or contracts under which the association or its
840 members has any obligation or responsibility, which must be
841 retained within this state for at least 5 7 years after the
842 expiration date of the contract or agreement.
843 (h) The financial and accounting records of the
844 association, kept according to good accounting practices. All
845 financial and accounting records must be maintained within this
846 state for a period of at least 5 7 years. The financial and
847 accounting records must include:
848 1. Accurate, itemized, and detailed records of all receipts
849 and expenditures.
850 2. A current account and a periodic statement of the
851 account for each member, designating the name and current
852 address of each member who is obligated to pay dues or
853 assessments, the due date and amount of each assessment or other
854 charge against the member, the date and amount of each payment
855 on the account, and the balance due.
856 3. All tax returns, financial statements, and financial
857 reports of the association.
858 4. Any other records that identify, measure, record, or
859 communicate financial information.
860 (i) All other written records of the association not
861 specifically included in the foregoing which are related to the
862 operation of the association must be retained within this state
863 for at least 5 years or at least 5 years after the expiration
864 date, as applicable.
865 (5) The official records shall be maintained within the
866 state for at least 7 years and shall be made available to a
867 member for inspection or photocopying within 20 10 business days
868 after receipt by the board or its designee of a written request
869 submitted by certified mail, return receipt requested. The
870 requirements of this subsection are satisfied by having a copy
871 of the official records available for inspection or copying in
872 the park or, at the option of the association, by making the
873 records available to a member electronically via the Internet or
874 by allowing the records to be viewed in electronic format on a
875 computer screen and printed upon request. If the association has
876 a photocopy machine available where the records are maintained,
877 it must provide a member with copies on request during the
878 inspection if the entire request is no more than 25 pages. An
879 association shall allow a member or his or her authorized
880 representative to use a portable device, including a smartphone,
881 tablet, portable scanner, or any other technology capable of
882 scanning or taking photographs, to make an electronic copy of
883 the official records in lieu of the association’s providing the
884 member or his or her authorized representative with a copy of
885 such records. The association may not charge a fee to a member
886 or his or her authorized representative for the use of a
887 portable device.
888 (a) The failure of an association to provide access to the
889 records within 20 10 business days after receipt of a written
890 request submitted by certified mail, return receipt requested,
891 creates a rebuttable presumption that the association willfully
892 failed to comply with this subsection.
893 (b) A member who is denied access to official records is
894 entitled to the actual damages or minimum damages for the
895 association’s willful failure to comply with this subsection in
896 the amount of. The minimum damages are to be $10 per calendar
897 day up to 10 days, not to exceed $100. The calculation for
898 damages begins to begin on the 21st 11th business day after
899 receipt of the written request, submitted by certified mail,
900 return receipt requested.
901 (c) A dispute between a member and an association regarding
902 inspecting or photocopying official records must be submitted to
903 mandatory binding arbitration with the division, and the
904 arbitration must be conducted pursuant to s. 723.1255 and
905 procedural rules adopted by the division.
906 (d) The association may adopt reasonable written rules
907 governing the frequency, time, location, notice, records to be
908 inspected, and manner of inspections, but may not require a
909 member to demonstrate a proper purpose for the inspection, state
910 a reason for the inspection, or limit a member’s right to
911 inspect records to less than 1 business day per month. The
912 association may impose fees to cover the costs of providing
913 copies of the official records, including the costs of copying
914 and for personnel to retrieve and copy the records if the time
915 spent retrieving and copying the records exceeds 30 minutes and
916 if the personnel costs do not exceed $20 per hour. Personnel
917 costs may not be charged for records requests that result in the
918 copying of 25 or fewer pages. The association may charge up to
919 25 cents per page for copies made on the association’s
920 photocopier. If the association does not have a photocopy
921 machine available where the records are kept, or if the records
922 requested to be copied exceed 25 pages in length, the
923 association may have copies made by an outside duplicating
924 service and may charge the actual cost of copying, as supported
925 by the vendor invoice. The association shall maintain an
926 adequate number of copies of the recorded governing documents,
927 to ensure their availability to members and prospective members.
928 Notwithstanding this paragraph, the following records are not
929 accessible to members or home owners:
930 1. A record protected by the lawyer-client privilege as
931 described in s. 90.502 and a record protected by the work
932 product privilege, including, but not limited to, a record
933 prepared by an association attorney or prepared at the
934 attorney’s express direction which reflects a mental impression,
935 conclusion, litigation strategy, or legal theory of the attorney
936 or the association and which was prepared exclusively for civil
937 or criminal litigation, for adversarial administrative
938 proceedings, or in anticipation of such litigation or
939 proceedings until the conclusion of the litigation or
940 proceedings.
941 2. E-mail addresses, telephone numbers, facsimile numbers,
942 emergency contact information, any addresses for a home owner
943 other than as provided for association notice requirements, and
944 other personal identifying information of any person, excluding
945 the person’s name, lot designation, mailing address, and
946 property address. Notwithstanding the restrictions in this
947 subparagraph, an association may print and distribute to home
948 owners a directory containing the name, park address, and
949 telephone number of each home owner. However, a home owner may
950 exclude his or her telephone number from the directory by so
951 requesting in writing to the association. The association is not
952 liable for the disclosure of information that is protected under
953 this subparagraph if the information is included in an official
954 record of the association and is voluntarily provided by a home
955 owner and not requested by the association.
956 3. An electronic security measure that is used by the
957 association to safeguard data, including passwords.
958 4. The software and operating system used by the
959 association which allows the manipulation of data, even if the
960 home owner owns a copy of the same software used by the
961 association. The data is part of the official records of the
962 association.
963 Section 15. Section 723.1255, Florida Statutes, is amended
964 to read:
965 723.1255 Alternative resolution of recall, election, and
966 inspection and photocopying of official records disputes.—
967 (1) A dispute between a mobile home owner and a homeowners’
968 association regarding the election and recall of officers or
969 directors under s. 723.078(2)(b) or regarding the inspection and
970 photocopying of official records under s. 723.079(5) must be
971 submitted to mandatory binding arbitration with the division.
972 The arbitration shall be conducted in accordance with this
973 section and the procedural rules adopted by the division.
974 (2) Each party shall be responsible for paying its own
975 attorney fees, expert and investigator fees, and associated
976 costs. The cost of the arbitrators shall be divided equally
977 between the parties regardless of the outcome.
978 (3) The division shall adopt procedural rules to govern
979 mandatory binding arbitration proceedings The Division of
980 Florida Condominiums, Timeshares, and Mobile Homes of the
981 Department of Business and Professional Regulation shall adopt
982 rules of procedure to govern binding recall arbitration
983 proceedings.
984 Section 16. This act shall take effect July 1, 2020.
