Bill Text: FL S1046 | 2017 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Covenants and Restrictions

Spectrum: Bipartisan Bill

Status: (Failed) 2017-05-04 - Laid on Table [S1046 Detail]

Download: Florida-2017-S1046-Introduced.html
       Florida Senate - 2017                                    SB 1046
       
       
        
       By Senator Passidomo
       
       
       
       
       
       28-00635C-17                                          20171046__
    1                        A bill to be entitled                      
    2         An act relating to covenants and restrictions;
    3         amending ss. 125.022 and 166.033, F.S.; deleting
    4         provisions specifying that a county or municipality is
    5         not prohibited from providing information to an
    6         applicant regarding other state or federal permits
    7         that may apply under certain circumstances; specifying
    8         that the imposition or acceptance of certain
    9         restrictions or covenants does not preclude a county
   10         or municipality from exercising its police power, in
   11         its sole discretion, to later amend, release, or
   12         terminate such restrictions or covenants; prohibiting
   13         a county or municipality from delegating its police
   14         power to a third party by restriction, covenant, or
   15         otherwise; declaring any such purported delegation
   16         void; providing for retroactive applicability;
   17         creating s. 712.001, F.S.; providing a short title;
   18         amending s. 712.01, F.S.; defining and redefining
   19         terms; amending s. 712.04, F.S.; providing that a
   20         marketable title is free and clear of all covenants or
   21         restrictions, the existence of which depends upon any
   22         act, title transaction, event, zoning requirement,
   23         building or development permit, or omission that
   24         occurred before the effective date of the root of
   25         title; providing for construction; providing
   26         applicability; amending s. 712.05, F.S.; revising the
   27         notice filing requirements for a person claiming an
   28         interest in land and other rights; authorizing a
   29         property owners’ association to preserve and protect
   30         certain covenants or restrictions from extinguishment,
   31         subject to specified requirements; providing that a
   32         failure in indexing does not affect the validity of
   33         the notice; extending the length of time certain
   34         covenants or restrictions are preserved; deleting a
   35         provision requiring a two-thirds vote by members of an
   36         incorporated homeowners’ association to file certain
   37         notices; conforming provisions to changes made by the
   38         act; amending s. 712.06, F.S.; exempting a specified
   39         summary notice from certain notice content
   40         requirements; revising the contents required to be
   41         specified by certain notices; conforming provisions to
   42         changes made by the act; amending s. 712.11, F.S.;
   43         conforming provisions to changes made by the act;
   44         creating s. 712.12, F.S.; defining terms; authorizing
   45         the parcel owners of a community not subject to a
   46         homeowners’ association to use specified procedures to
   47         revive certain covenants or restrictions, subject to
   48         certain exceptions and requirements; authorizing a
   49         parcel owner to commence an action by a specified date
   50         under certain circumstances for a judicial
   51         determination that the covenants or restrictions did
   52         not govern that parcel as of a specified date and that
   53         any revitalization of such covenants or restrictions
   54         as to that parcel would unconstitutionally deprive the
   55         parcel owner of rights or property; providing
   56         applicability; amending s. 720.303, F.S.; requiring a
   57         board to take up certain provisions relating to notice
   58         filings at the first board meeting; creating s.
   59         720.3032, F.S.; providing recording requirements for
   60         an association; providing a document form for
   61         recording by an association to preserve certain
   62         covenants or restrictions; providing that failure to
   63         file one or more notices does not affect the validity
   64         or enforceability of a covenant or restriction or
   65         alter the time before extinguishment under certain
   66         circumstances; requiring a copy of the filed notice to
   67         be sent to all members; requiring the original signed
   68         notice to be recorded with the clerk of the circuit
   69         court or other recorder; amending ss. 702.09 and
   70         702.10, F.S.; conforming provisions to changes made by
   71         the act; amending s. 712.095, F.S.; conforming a
   72         cross-reference; amending ss. 720.403, 720.404,
   73         720.405, and 720.407, F.S.; conforming provisions to
   74         changes made by the act; providing an effective date.
   75          
   76  Be It Enacted by the Legislature of the State of Florida:
   77  
   78         Section 1. Subsection (6) of section 125.022, Florida
   79  Statutes, is amended to read:
   80         125.022 Development permits.—
   81         (6) The imposition or acceptance of a recorded or
   82  unrecorded restriction or covenant in connection with the
   83  approval or issuance of a development permit does not preclude
   84  the county from exercising its police power, in its sole
   85  discretion, to later amend, release, or terminate the
   86  restriction or covenant. A county may not delegate its police
   87  power to a third party by restriction, covenant, or otherwise,
   88  and any such purported delegation is hereby declared to be void
   89  This section does not prohibit a county from providing
   90  information to an applicant regarding what other state or
   91  federal permits may apply.
   92         Section 2. Subsection (6) of section 166.033, Florida
   93  Statutes, is amended to read:
   94         166.033 Development permits.—
   95         (6) The imposition or acceptance of a recorded or
   96  unrecorded restriction or covenant in connection with the
   97  approval or issuance of a development permit does not preclude a
   98  municipality from exercising its police power, in its sole
   99  discretion, to later amend, release, or terminate the
  100  restriction or covenant. A municipality may not delegate its
  101  police power to a third party by restriction, covenant, or
  102  otherwise, and any such purported delegation is hereby declared
  103  to be void This section does not prohibit a municipality from
  104  providing information to an applicant regarding what other state
  105  or federal permits may apply.
  106         Section 3. The amendments by this act to ss. 125.022 and
  107  166.033, Florida Statutes, which relate to development permits,
  108  are remedial in nature and apply retroactively.
  109         Section 4. Section 712.001, Florida Statutes, is created to
  110  read:
  111         712.001 Short title.—This chapter may be cited as the
  112  “Marketable Record Title Act.”
  113         Section 5. Section 712.01, Florida Statutes, is reordered
  114  and amended to read:
  115         712.01 Definitions.—As used in this chapter, the term law:
  116         (1) “Community covenant or restriction” means any agreement
  117  or limitation contained in a document recorded in the public
  118  records of the county in which a parcel is located which:
  119         (a) Subjects the parcel to any use restriction that may be
  120  enforced by a property owners’ association; or
  121         (b) Authorizes a property owners’ association to impose a
  122  charge or assessment against the parcel or the parcel owner.
  123         (4)(1)The term “Person” includes the as used herein
  124  denotes singular or plural, natural or corporate, private or
  125  governmental, including the state and any political subdivision
  126  or agency thereof as the context for the use thereof requires or
  127  denotes and including any property owners’ homeowners’
  128  association.
  129         (6)(2) “Root of title” means any title transaction
  130  purporting to create or transfer the estate claimed by any
  131  person and which is the last title transaction to have been
  132  recorded at least 30 years before prior to the time when
  133  marketability is being determined. The effective date of the
  134  root of title is the date on which it was recorded.
  135         (7)(3) “Title transaction” means any recorded instrument or
  136  court proceeding that which affects title to any estate or
  137  interest in land and that which describes the land sufficiently
  138  to identify its location and boundaries.
  139         (5)(4)Property owners’ association” The termhomeowners’
  140  association” means a homeowners’ association as defined in s.
  141  720.301, a corporation or other entity responsible for the
  142  operation of property in which the voting membership is made up
  143  of the owners of the property or their agents, or a combination
  144  thereof, and in which membership is a mandatory condition of
  145  property ownership, or an association of parcel owners which is
  146  authorized to enforce a community covenant or restriction use
  147  restrictions that is are imposed on the parcels.
  148         (3)(5)The term “Parcel” means real property that which is
  149  used for residential purposes and that is subject to exclusive
  150  ownership and which is subject to any covenant or restriction of
  151  a property owners’ homeowners’ association.
  152         (2)(6)The term “Covenant or restriction” means any
  153  agreement or limitation contained in a document recorded in the
  154  public records of the county in which a parcel is located which
  155  subjects the parcel to any use or other restriction or
  156  obligation which may be enforced by a homeowners’ association or
  157  which authorizes a homeowners’ association to impose a charge or
  158  assessment against the parcel or the owner of the parcel or
  159  which may be enforced by the Florida Department of Environmental
  160  Protection pursuant to chapter 376 or chapter 403.
  161         Section 6. Section 712.04, Florida Statutes, is amended to
  162  read:
  163         712.04 Interests extinguished by marketable record title.—
  164         (1) Subject to s. 712.03, a marketable record title is free
  165  and clear of all estates, interests, claims, covenants,
  166  restrictions, or charges, the existence of which depends upon
  167  any act, title transaction, event, zoning requirement, building
  168  or development permit, or omission that occurred before the
  169  effective date of the root of title. Except as provided in s.
  170  712.03, all such estates, interests, claims, covenants,
  171  restrictions, or charges, however denominated, whether they are
  172  or appear to be held or asserted by a person sui juris or under
  173  a disability, whether such person is within or without the
  174  state, natural or corporate, or private or governmental, are
  175  declared to be null and void. However, this chapter does not
  176  affect any right, title, or interest of the United States,
  177  Florida, or any of its officers, boards, commissions, or other
  178  agencies reserved in the patent or deed by which the United
  179  States, Florida, or any of its agencies parted with title.
  180         (2) This section may not be construed to alter or
  181  invalidate a zoning ordinance, land development regulation,
  182  building code, or other ordinance, rule, regulation, or law if
  183  such ordinance, rule, regulation, or law operates independently
  184  of matters recorded in the official records.
  185         (3) This section is intended to clarify existing law, is
  186  remedial in nature, and applies to all restrictions and
  187  covenants whether imposed or accepted before, on, or after
  188  October 1, 2017.
  189         Section 7. Section 712.05, Florida Statutes, is amended to
  190  read:
  191         712.05 Effect of filing notice.—
  192         (1) A person claiming an interest in land or other right
  193  subject to extinguishment under this chapter a homeowners’
  194  association desiring to preserve a covenant or restriction may
  195  preserve and protect such interest or right the same from
  196  extinguishment by the operation of this chapter act by filing
  197  for record, at any time during the 30-year period immediately
  198  following the effective date of the root of title, a written
  199  notice in accordance with s. 712.06 this chapter.
  200         (2) A property owners’ association may preserve and protect
  201  a community covenant or restriction from extinguishment by the
  202  operation of this chapter by filing for record, at any time
  203  during the 30-year period immediately following the effective
  204  date of the root of title:
  205         (a) A written notice in accordance with s. 712.06; or
  206         (b) A summary notice in substantial form and content as
  207  required under s. 720.3032(2). Failure of a summary notice to be
  208  indexed to the current owners of the affected property does not
  209  affect the validity of the notice or vitiate the effect of the
  210  filing of such notice.
  211         (3)A Such notice under subsection (1) or subsection (2)
  212  preserves an interest in land or other such claim of right
  213  subject to extinguishment under this chapter, or a such covenant
  214  or restriction or portion of such covenant or restriction, for
  215  not less than up to 30 years after filing the notice unless the
  216  notice is filed again as required in this chapter. A person’s
  217  disability or lack of knowledge of any kind may not delay the
  218  commencement of or suspend the running of the 30-year period.
  219  Such notice may be filed for record by the claimant or by any
  220  other person acting on behalf of a claimant who is:
  221         (a) Under a disability;
  222         (b) Unable to assert a claim on his or her behalf; or
  223         (c) One of a class, but whose identity cannot be
  224  established or is uncertain at the time of filing such notice of
  225  claim for record.
  226  
  227  Such notice may be filed by a homeowners’ association only if
  228  the preservation of such covenant or restriction or portion of
  229  such covenant or restriction is approved by at least two-thirds
  230  of the members of the board of directors of an incorporated
  231  homeowners’ association at a meeting for which a notice, stating
  232  the meeting’s time and place and containing the statement of
  233  marketable title action described in s. 712.06(1)(b), was mailed
  234  or hand delivered to members of the homeowners’ association at
  235  least 7 days before such meeting. The property owners’
  236  homeowners’ association or clerk of the circuit court is not
  237  required to provide additional notice pursuant to s. 712.06(3).
  238  The preceding sentence is intended to clarify existing law.
  239         (4)(2) It is shall not be necessary for the owner of the
  240  marketable record title, as described in s. 712.02 herein
  241  defined, to file a notice to protect his or her marketable
  242  record title.
  243         Section 8. Subsections (1) and (3) of section 712.06,
  244  Florida Statutes, are amended to read:
  245         712.06 Contents of notice; recording and indexing.—
  246         (1) To be effective, the notice referred to in s. 712.05,
  247  other than the summary notice referred to in s. 712.05(2)(b),
  248  must shall contain:
  249         (a) The name or description and mailing address of the
  250  claimant or the property owners’ homeowners’ association
  251  desiring to preserve any covenant or restriction and the name
  252  and particular post office address of the person filing the
  253  claim or the homeowners’ association.
  254         (b) The name and mailing post office address of an owner,
  255  or the name and mailing post office address of the person in
  256  whose name the said property is assessed on the last completed
  257  tax assessment roll of the county at the time of filing, who,
  258  for purpose of such notice, shall be deemed to be an owner;
  259  provided, however, if a property owners’ homeowners’ association
  260  is filing the notice, then the requirements of this paragraph
  261  may be satisfied by attaching to and recording with the notice
  262  an affidavit executed by the appropriate member of the board of
  263  directors of the property owners’ homeowners’ association
  264  affirming that the board of directors of the property owners’
  265  homeowners’ association caused a statement in substantially the
  266  following form to be mailed or hand delivered to the members of
  267  that property owners’ homeowners’ association:
  268  
  269                STATEMENT OF MARKETABLE TITLE ACTION               
  270  
  271         The [name of property owners’ homeowners’ association] (the
  272  “Association”) has taken action to ensure that the [name of
  273  declaration, covenant, or restriction], recorded in Official
  274  Records Book ...., Page ...., of the public records of ....
  275  County, Florida, as may be amended from time to time, currently
  276  burdening the property of each and every member of the
  277  Association, retains its status as the source of marketable
  278  title with regard to the affected real property the transfer of
  279  a member’s residence. To this end, the Association shall cause
  280  the notice required by chapter 712, Florida Statutes, to be
  281  recorded in the public records of .... County, Florida. Copies
  282  of this notice and its attachments are available through the
  283  Association pursuant to the Association’s governing documents
  284  regarding official records of the Association.
  285  
  286         (c) A full and complete description of all land affected by
  287  such notice, which description shall be set forth in particular
  288  terms and not by general reference, but if said claim is founded
  289  upon a recorded instrument or a covenant or a restriction, then
  290  the description in such notice may be the same as that contained
  291  in such recorded instrument or covenant or restriction, provided
  292  the same shall be sufficient to identify the property.
  293         (d) A statement of the claim showing the nature,
  294  description, and extent of such claim or other right subject to
  295  extinguishment under this chapter or, in the case of a covenant
  296  or restriction, a copy of the covenant or restriction, except
  297  that it is shall not be necessary to show the amount of any
  298  claim for money or the terms of payment.
  299         (e) If such claim or other right subject to extinguishment
  300  under this chapter is based upon an instrument of record or a
  301  recorded covenant or restriction, such instrument of record or
  302  recorded covenant or restriction shall be deemed sufficiently
  303  described to identify the same if the notice includes a
  304  reference to the book and page in which the same is recorded.
  305         (f) Such notice shall be acknowledged in the same manner as
  306  deeds are acknowledged for record.
  307         (3) The person providing the notice referred to in s.
  308  712.05, other than a notice for preservation of a community
  309  covenant or restriction, shall:
  310         (a) Cause the clerk of the circuit court to mail by
  311  registered or certified mail to the purported owner of said
  312  property, as stated in such notice, a copy thereof and shall
  313  enter on the original, before recording the same, a certificate
  314  showing such mailing. For preparing the certificate, the
  315  claimant shall pay to the clerk the service charge as prescribed
  316  in s. 28.24(8) and the necessary costs of mailing, in addition
  317  to the recording charges as prescribed in s. 28.24(12). If the
  318  notice names purported owners having more than one address, the
  319  person filing the same shall furnish a true copy for each of the
  320  several addresses stated, and the clerk shall send one such copy
  321  to the purported owners named at each respective address. Such
  322  certificate shall be sufficient if the same reads substantially
  323  as follows:
  324  
  325         I hereby certify that I did on this ...., mail by
  326  registered (or certified) mail a copy of the foregoing notice to
  327  each of the following at the address stated:
  328  
  329  ...(Clerk of the circuit court)...
  330  of .... County, Florida,
  331  By...(Deputy clerk)...
  332  
  333  The clerk of the circuit court is not required to mail to the
  334  purported owner of such property any such notice that pertains
  335  solely to the preserving of any covenant or restriction or any
  336  portion of a covenant or restriction; or
  337         (b) Publish once a week, for 2 consecutive weeks, the
  338  notice referred to in s. 712.05, with the official record book
  339  and page number in which such notice was recorded, in a
  340  newspaper as defined in chapter 50 in the county in which the
  341  property is located.
  342         Section 9. Section 712.11, Florida Statutes, is amended to
  343  read:
  344         712.11 Covenant revitalization.—A property owners’
  345  homeowners’ association not otherwise subject to chapter 720 may
  346  use the procedures set forth in ss. 720.403-720.407 to revive
  347  covenants that have lapsed under the terms of this chapter.
  348         Section 10. Section 712.12, Florida Statutes, is created to
  349  read:
  350         712.12 Covenant or restriction revitalization by parcel
  351  owners not subject to a homeowners’ association.—
  352         (1) As used in this section, the term:
  353         (a) “Community” means the real property that is subject to
  354  a covenant or restriction that is recorded in the county where
  355  the property is located.
  356         (b) “Covenant or restriction” means any agreement or
  357  limitation imposed by a private party and not required by a
  358  governmental agency as a condition of a development permit, as
  359  defined in s. 163.3164, which is contained in a document
  360  recorded in the public records of the county in which a parcel
  361  is located and which subjects the parcel to any use restriction
  362  that may be enforced by a parcel owner.
  363         (c) “Parcel” means real property that is used for
  364  residential purposes and that is subject to exclusive ownership
  365  and any covenant or restriction that may be enforced by a parcel
  366  owner.
  367         (d) “Parcel owner” means the record owner of legal title to
  368  a parcel.
  369         (2) The parcel owners of a community not subject to a
  370  homeowners’ association may use the procedures set forth in ss.
  371  720.403-720.407 to revive covenants or restrictions that have
  372  lapsed under the terms of this chapter, except:
  373         (a) A reference to a homeowners’ association or articles of
  374  incorporation or bylaws of a homeowners’ association under ss.
  375  720.403-720.407 is not required to revive the covenants or
  376  restrictions.
  377         (b) The approval required under s. 720.405(6) must be in
  378  writing, and not at a meeting.
  379         (c) The requirements under s. 720.407(2) may be satisfied
  380  by having the organizing committee execute the revived covenants
  381  or restrictions in the name of the community.
  382         (d) The indexing requirements under s. 720.407(3) may be
  383  satisfied by indexing the community name in the covenants or
  384  restrictions as the grantee and the parcel owners as the
  385  grantors.
  386         (3) With respect to any parcel that has ceased to be
  387  governed by covenants or restrictions as of October 1, 2017, the
  388  parcel owner may commence an action by October 1, 2018, for a
  389  judicial determination that the covenants or restrictions did
  390  not govern that parcel as of October 1, 2017, and that any
  391  revitalization of such covenants or restrictions as to that
  392  parcel would unconstitutionally deprive the parcel owner of
  393  rights or property.
  394         (4) Revived covenants or restrictions that are implemented
  395  pursuant to this section do not apply to or affect the rights of
  396  the parcel owner which are recognized by any court order or
  397  judgment in any action commenced by October 1, 2018, and any
  398  such rights so recognized may not be subsequently altered by
  399  revived covenants or restrictions implemented under this section
  400  without the consent of the affected parcel owner.
  401         Section 11. Paragraph (e) is added to subsection (2) of
  402  section 720.303, Florida Statutes, to read:
  403         720.303 Association powers and duties; meetings of board;
  404  official records; budgets; financial reporting; association
  405  funds; recalls.—
  406         (2) BOARD MEETINGS.—
  407         (e) At the first board meeting, excluding the
  408  organizational meeting, which follows the annual meeting of the
  409  members, the board shall consider the desirability of filing
  410  notices to preserve the covenants or restrictions affecting the
  411  community or association from extinguishment under the
  412  Marketable Record Title Act, chapter 712, and to authorize and
  413  direct the appropriate officer to file notice in accordance with
  414  s. 720.3032.
  415         Section 12. Section 720.3032, Florida Statutes, is created
  416  to read:
  417         720.3032 Notice of association information; preservation
  418  from Marketable Record Title Act.—
  419         (1)Not less than once every 5 years, each association
  420  shall record in the official records of each county in which the
  421  community is located a notice specifying:
  422         (a)The legal name of the association.
  423         (b)The mailing and physical addresses of the association.
  424         (c)The names of the affected subdivision plats and
  425  condominiums or, if not applicable, the common name of the
  426  community.
  427         (d)The name, address, and telephone number for the current
  428  community association management company or community
  429  association manager, if any.
  430         (e)Indication as to whether the association desires to
  431  preserve the covenants or restrictions affecting the community
  432  or association from extinguishment under the Marketable Record
  433  Title Act, chapter 712.
  434         (f)A listing by name and recording information of those
  435  covenants or restrictions affecting the community which the
  436  association desires to be preserved from extinguishment.
  437         (g)The legal description of the community affected by the
  438  covenants or restrictions, which may be satisfied by a reference
  439  to a recorded plat.
  440         (h)The signature of a duly authorized officer of the
  441  association, acknowledged in the same manner as deeds are
  442  acknowledged for record.
  443         (2)Recording a document in substantially the following
  444  form satisfies the notice obligation and constitutes a summary
  445  notice as specified in s. 712.05(2)(b) sufficient to preserve
  446  and protect the referenced covenants and restrictions from
  447  extinguishment under the Marketable Record Title Act, chapter
  448  712.
  449  
  450  Notice of ...(name of association)... under s. 720.3032, Florida 
  451     Statutes, and notice to preserve and protect covenants and    
  452    restrictions from extinguishment under the Marketable Record   
  453              Title Act, chapter 712, Florida Statutes.            
  454  
  455         Instructions to recorder: Please index both the legal name
  456  of the association and the names shown in item 3.
  457         1. Legal name of association: ....
  458         2. Mailing and physical addresses of association: .... ....
  459         3.Names of the subdivision plats, or, if none, common name
  460  of community: ....
  461         4. Name, address, and telephone number for management
  462  company, if any: ................
  463         5. This notice does .... does not .... constitute a notice
  464  to preserve and protect covenants or restrictions from
  465  extinguishment under the Marketable Record Title Act.
  466         6. The following covenants or restrictions affecting the
  467  community which the association desires to be preserved from
  468  extinguishment:
  469  ...(Name of instrument)...
  470  ...(Official Records Book where recorded & page)...
  471  ...(List of instruments)...
  472  ...(List of recording information)...
  473         7. The legal description of the community affected by the
  474  listed covenants or restrictions is: ...(Legal description,
  475  which may be satisfied by reference to a recorded plat)...
  476         This notice is filed on behalf of ...(Name of
  477  association)... as of ...(Date)....
  478  ...(Name of association)...
  479  
  480  By: ....
  481  ...(Name of individual officer)...
  482  ...(Title of officer)...
  483  ...(Notary acknowledgment)...
  484  
  485         (3) The failure to file one or more notices does not affect
  486  the validity or enforceability of any covenant or restriction
  487  nor in any way alter the remaining time before extinguishment by
  488  the Marketable Record Title Act, chapter 712.
  489         (4)A copy of the notice, as filed, must be included as
  490  part of the next notice of meeting or other mailing sent to all
  491  members.
  492         (5)The original signed notice must be recorded in the
  493  official records of the clerk of the circuit court or other
  494  recorder for the county.
  495         Section 13. Section 702.09, Florida Statutes, is amended to
  496  read:
  497         702.09 Definitions.—For the purposes of ss. 702.07 and
  498  702.08, the words “decree of foreclosure” shall include a
  499  judgment or order rendered or passed in the foreclosure
  500  proceedings in which the decree of foreclosure shall be
  501  rescinded, vacated, and set aside; the word “mortgage” shall
  502  mean any written instrument securing the payment of money or
  503  advances and includes liens to secure payment of assessments
  504  arising under chapters 718 and 719 and liens created pursuant to
  505  the recorded covenants of a property owners’ homeowners’
  506  association as defined in s. 712.01; the word “debt” shall
  507  include promissory notes, bonds, and all other written
  508  obligations given for the payment of money; the words
  509  “foreclosure proceedings” shall embrace every action in the
  510  circuit or county courts of this state wherein it is sought to
  511  foreclose a mortgage and sell the property covered by the same;
  512  and the word “property” shall mean and include both real and
  513  personal property.
  514         Section 14. Subsection (1) of section 702.10, Florida
  515  Statutes, is amended to read:
  516         702.10 Order to show cause; entry of final judgment of
  517  foreclosure; payment during foreclosure.—
  518         (1) A lienholder may request an order to show cause for the
  519  entry of final judgment in a foreclosure action. For purposes of
  520  this section, the term “lienholder” includes the plaintiff and a
  521  defendant to the action who holds a lien encumbering the
  522  property or a defendant who, by virtue of its status as a
  523  condominium association, cooperative association, or property
  524  owners’ homeowners’ association, may file a lien against the
  525  real property subject to foreclosure. Upon filing, the court
  526  shall immediately review the request and the court file in
  527  chambers and without a hearing. If, upon examination of the
  528  court file, the court finds that the complaint is verified,
  529  complies with s. 702.015, and alleges a cause of action to
  530  foreclose on real property, the court shall promptly issue an
  531  order directed to the other parties named in the action to show
  532  cause why a final judgment of foreclosure should not be entered.
  533         (a) The order shall:
  534         1. Set the date and time for a hearing to show cause. The
  535  date for the hearing may not occur sooner than the later of 20
  536  days after service of the order to show cause or 45 days after
  537  service of the initial complaint. When service is obtained by
  538  publication, the date for the hearing may not be set sooner than
  539  30 days after the first publication.
  540         2. Direct the time within which service of the order to
  541  show cause and the complaint must be made upon the defendant.
  542         3. State that the filing of defenses by a motion, a
  543  responsive pleading, an affidavit, or other papers before the
  544  hearing to show cause that raise a genuine issue of material
  545  fact which would preclude the entry of summary judgment or
  546  otherwise constitute a legal defense to foreclosure shall
  547  constitute cause for the court not to enter final judgment.
  548         4. State that a defendant has the right to file affidavits
  549  or other papers before the time of the hearing to show cause and
  550  may appear personally or by way of an attorney at the hearing.
  551         5. State that, if a defendant files defenses by a motion, a
  552  verified or sworn answer, affidavits, or other papers or appears
  553  personally or by way of an attorney at the time of the hearing,
  554  the hearing time will be used to hear and consider whether the
  555  defendant’s motion, answer, affidavits, other papers, and other
  556  evidence and argument as may be presented by the defendant or
  557  the defendant’s attorney raise a genuine issue of material fact
  558  which would preclude the entry of summary judgment or otherwise
  559  constitute a legal defense to foreclosure. The order shall also
  560  state that the court may enter an order of final judgment of
  561  foreclosure at the hearing and order the clerk of the court to
  562  conduct a foreclosure sale.
  563         6. State that, if a defendant fails to appear at the
  564  hearing to show cause or fails to file defenses by a motion or
  565  by a verified or sworn answer or files an answer not contesting
  566  the foreclosure, such defendant may be considered to have waived
  567  the right to a hearing, and in such case, the court may enter a
  568  default against such defendant and, if appropriate, a final
  569  judgment of foreclosure ordering the clerk of the court to
  570  conduct a foreclosure sale.
  571         7. State that if the mortgage provides for reasonable
  572  attorney fees and the requested attorney fees do not exceed 3
  573  percent of the principal amount owed at the time of filing the
  574  complaint, it is unnecessary for the court to hold a hearing or
  575  adjudge the requested attorney fees to be reasonable.
  576         8. Attach the form of the proposed final judgment of
  577  foreclosure which the movant requests the court to enter at the
  578  hearing on the order to show cause.
  579         9. Require the party seeking final judgment to serve a copy
  580  of the order to show cause on the other parties in the following
  581  manner:
  582         a. If a party has been served pursuant to chapter 48 with
  583  the complaint and original process, or the other party is the
  584  plaintiff in the action, service of the order to show cause on
  585  that party may be made in the manner provided in the Florida
  586  Rules of Civil Procedure.
  587         b. If a defendant has not been served pursuant to chapter
  588  48 with the complaint and original process, the order to show
  589  cause, together with the summons and a copy of the complaint,
  590  shall be served on the party in the same manner as provided by
  591  law for original process.
  592  
  593  Any final judgment of foreclosure entered under this subsection
  594  is for in rem relief only. This subsection does not preclude the
  595  entry of a deficiency judgment where otherwise allowed by law.
  596  The Legislature intends that this alternative procedure may run
  597  simultaneously with other court procedures.
  598         (b) The right to be heard at the hearing to show cause is
  599  waived if a defendant, after being served as provided by law
  600  with an order to show cause, engages in conduct that clearly
  601  shows that the defendant has relinquished the right to be heard
  602  on that order. The defendant’s failure to file defenses by a
  603  motion or by a sworn or verified answer, affidavits, or other
  604  papers or to appear personally or by way of an attorney at the
  605  hearing duly scheduled on the order to show cause presumptively
  606  constitutes conduct that clearly shows that the defendant has
  607  relinquished the right to be heard. If a defendant files
  608  defenses by a motion, a verified answer, affidavits, or other
  609  papers or presents evidence at or before the hearing which raise
  610  a genuine issue of material fact which would preclude entry of
  611  summary judgment or otherwise constitute a legal defense to
  612  foreclosure, such action constitutes cause and precludes the
  613  entry of a final judgment at the hearing to show cause.
  614         (c) In a mortgage foreclosure proceeding, when a final
  615  judgment of foreclosure has been entered against the mortgagor
  616  and the note or mortgage provides for the award of reasonable
  617  attorney fees, it is unnecessary for the court to hold a hearing
  618  or adjudge the requested attorney fees to be reasonable if the
  619  fees do not exceed 3 percent of the principal amount owed on the
  620  note or mortgage at the time of filing, even if the note or
  621  mortgage does not specify the percentage of the original amount
  622  that would be paid as liquidated damages.
  623         (d) If the court finds that all defendants have waived the
  624  right to be heard as provided in paragraph (b), the court shall
  625  promptly enter a final judgment of foreclosure without the need
  626  for further hearing if the plaintiff has shown entitlement to a
  627  final judgment and upon the filing with the court of the
  628  original note, satisfaction of the conditions for establishment
  629  of a lost note, or upon a showing to the court that the
  630  obligation to be foreclosed is not evidenced by a promissory
  631  note or other negotiable instrument. If the court finds that a
  632  defendant has not waived the right to be heard on the order to
  633  show cause, the court shall determine whether there is cause not
  634  to enter a final judgment of foreclosure. If the court finds
  635  that the defendant has not shown cause, the court shall promptly
  636  enter a judgment of foreclosure. If the time allotted for the
  637  hearing is insufficient, the court may announce at the hearing a
  638  date and time for the continued hearing. Only the parties who
  639  appear, individually or through an attorney, at the initial
  640  hearing must be notified of the date and time of the continued
  641  hearing.
  642         Section 15. Section 712.095, Florida Statutes, is amended
  643  to read:
  644         712.095 Notice required by July 1, 1983.—Any person whose
  645  interest in land is derived from an instrument or court
  646  proceeding recorded subsequent to the root of title, which
  647  instrument or proceeding did not contain a description of the
  648  land as specified by s. 712.01(7) s. 712.01(3), and whose
  649  interest had not been extinguished prior to July 1, 1981, shall
  650  have until July 1, 1983, to file a notice in accordance with s.
  651  712.06 to preserve the interest.
  652         Section 16. Section 720.403, Florida Statutes, is amended
  653  to read:
  654         720.403 Preservation of residential communities; revival of
  655  declaration of covenants.—
  656         (1) Consistent with required and optional elements of local
  657  comprehensive plans and other applicable provisions of the
  658  Community Planning Act, property owners homeowners are
  659  encouraged to preserve existing residential and other
  660  communities, promote available and affordable housing, protect
  661  structural and aesthetic elements of their residential
  662  community, and, as applicable, maintain roads and streets,
  663  easements, water and sewer systems, utilities, drainage
  664  improvements, conservation and open areas, recreational
  665  amenities, and other infrastructure and common areas that serve
  666  and support the residential community by the revival of a
  667  previous declaration of covenants and other governing documents
  668  that may have ceased to govern some or all parcels in the
  669  community.
  670         (2) In order to preserve a residential community and the
  671  associated infrastructure and common areas for the purposes
  672  described in this section, the parcel owners in a community that
  673  was previously subject to a declaration of covenants that has
  674  ceased to govern one or more parcels in the community may revive
  675  the declaration and the homeowners’ association for the
  676  community upon approval by the parcel owners to be governed
  677  thereby as provided in this act, and upon approval of the
  678  declaration and the other governing documents for the
  679  association by the Department of Economic Opportunity in a
  680  manner consistent with this act.
  681         (3) Part III of this chapter is intended to provide
  682  mechanisms for the revitalization of covenants or restrictions
  683  for all types of communities and property associations and is
  684  not limited to residential communities.
  685         Section 17. Section 720.404, Florida Statutes, is amended
  686  to read:
  687         720.404 Eligible residential communities; requirements for
  688  revival of declaration.—Parcel owners in a community are
  689  eligible to seek approval from the Department of Economic
  690  Opportunity to revive a declaration of covenants under this act
  691  if all of the following requirements are met:
  692         (1) All parcels to be governed by the revived declaration
  693  must have been once governed by a previous declaration that has
  694  ceased to govern some or all of the parcels in the community;
  695         (2) The revived declaration must be approved in the manner
  696  provided in s. 720.405(6); and
  697         (3) The revived declaration may not contain covenants that
  698  are more restrictive on the parcel owners than the covenants
  699  contained in the previous declaration, except that the
  700  declaration may:
  701         (a) Have an effective term of longer duration than the term
  702  of the previous declaration;
  703         (b) Omit restrictions contained in the previous
  704  declaration;
  705         (c) Govern fewer than all of the parcels governed by the
  706  previous declaration;
  707         (d) Provide for amendments to the declaration and other
  708  governing documents; and
  709         (e) Contain provisions required by this chapter for new
  710  declarations that were not contained in the previous
  711  declaration.
  712         Section 18. Subsections (1), (3), (5), and (6) of section
  713  720.405, Florida Statutes, are amended to read:
  714         720.405 Organizing committee; parcel owner approval.—
  715         (1) The proposal to revive a declaration of covenants and
  716  an a homeowners’ association for a community under the terms of
  717  this act shall be initiated by an organizing committee
  718  consisting of not less than three parcel owners located in the
  719  community that is proposed to be governed by the revived
  720  declaration. The name, address, and telephone number of each
  721  member of the organizing committee must be included in any
  722  notice or other document provided by the committee to parcel
  723  owners to be affected by the proposed revived declaration.
  724         (3) The organizing committee shall prepare the full text of
  725  the proposed articles of incorporation and bylaws of the revived
  726  homeowners’ association to be submitted to the parcel owners for
  727  approval, unless the association is then an existing
  728  corporation, in which case the organizing committee shall
  729  prepare the existing articles of incorporation and bylaws to be
  730  submitted to the parcel owners.
  731         (5) A copy of the complete text of the proposed revised
  732  declaration of covenants, the proposed new or existing articles
  733  of incorporation and bylaws of the homeowners’ association, and
  734  a graphic depiction of the property to be governed by the
  735  revived declaration shall be presented to all of the affected
  736  parcel owners by mail or hand delivery not less than 14 days
  737  before the time that the consent of the affected parcel owners
  738  to the proposed governing documents is sought by the organizing
  739  committee.
  740         (6) A majority of the affected parcel owners must agree in
  741  writing to the revived declaration of covenants and governing
  742  documents of the homeowners’ association or approve the revived
  743  declaration and governing documents by a vote at a meeting of
  744  the affected parcel owners noticed and conducted in the manner
  745  prescribed by s. 720.306. Proof of notice of the meeting to all
  746  affected owners of the meeting and the minutes of the meeting
  747  recording the votes of the property owners shall be certified by
  748  a court reporter or an attorney licensed to practice in the
  749  state.
  750         Section 19. Subsection (3) of section 720.407, Florida
  751  Statutes, is amended to read:
  752         720.407 Recording; notice of recording; applicability and
  753  effective date.—
  754         (3) The recorded documents shall include the full text of
  755  the approved declaration of covenants, the articles of
  756  incorporation and bylaws of the homeowners’ association, the
  757  letter of approval by the department, and the legal description
  758  of each affected parcel of property. For purposes of chapter
  759  712, the association is deemed to be and shall be indexed as the
  760  grantee in a title transaction and the parcel owners named in
  761  the revived declaration are deemed to be and shall be indexed as
  762  the grantors in the title transaction.
  763         Section 20. This act shall take effect October 1, 2017.

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