Bill Text: FL S1502 | 2016 | Regular Session | Introduced
Bill Title: Homeowners' Associations
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2016-03-11 - Died in Regulated Industries [S1502 Detail]
Download: Florida-2016-S1502-Introduced.html
Florida Senate - 2016 SB 1502
By Senator Soto
14-01621-16 20161502__
1 A bill to be entitled
2 An act relating to homeowners’ associations; amending
3 s. 20.165, F.S.; renaming the Division of Florida
4 Condominiums, Timeshares, and Mobile Homes as the
5 Division of Florida Condominiums, Homeowners’
6 Associations, Timeshares, and Mobile Homes; amending
7 s. 718.509, F.S.; renaming the Division of Florida
8 Condominiums, Timeshares, and Mobile Homes Trust Fund
9 as the Division of Florida Condominiums, Homeowners’
10 Associations, Timeshares, and Mobile Homes Trust Fund;
11 amending s. 720.301, F.S.; revising and defining
12 terms; creating s. 720.3011, F.S.; providing that the
13 Legislature reserves the power to amend or repeal ch.
14 720, F.S.; requiring that homeowners’ associations be
15 governed by such amendment or repeal; amending s.
16 720.302, F.S.; clarifying legislative intent; creating
17 s. 720.3021, F.S.; providing division powers and
18 duties; creating s. 720.3022, F.S.; authorizing the
19 division to investigate complaints relating to
20 developer control and improper turnover; providing a
21 procedure for taking action on such complaints;
22 authorizing the division to conduct investigations to
23 determine whether ch. 720, F.S., or rules adopted
24 thereto have been violated; providing a procedure for
25 conducting and administering an investigation;
26 specifying conditions under which the division is
27 authorized to institute enforcement proceedings in its
28 own name; providing for service of process; requiring
29 the division to adopt penalty guidelines; establishing
30 factors the division must consider to adopt the
31 guidelines; creating s. 720.3023, F.S.; requiring
32 funds collected by the division to be deposited into
33 the Florida Condominiums, Homeowners’ Associations,
34 Timeshares, and Mobile Homes Trust Fund; creating s.
35 720.3029, F.S.; requiring the payment of certain fees
36 by homeowners’ associations; amending s. 720.303,
37 F.S.; requiring written notice of a board meeting at
38 which increases in assessments or amendments to
39 governing documents will be considered; specifying
40 notice requirements; amending s. 720.305, F.S.;
41 authorizing a homeowners’ association to impose fines
42 if its original governing documents authorized the
43 imposition of such fines; prohibiting a fine from
44 becoming a lien against a parcel; amending s. 720.306,
45 F.S.; restricting the amendment of the declaration of
46 a homeowners’ association to a specified vote of the
47 affected parcels; revising annual meeting
48 requirements; providing requirements for voting by
49 general and limited proxy; revising provisions
50 relating to board elections and vacancies; amending s.
51 720.307, F.S.; revising the applicability of certain
52 provisions that relate to the transition of
53 association control in a community; amending ss.
54 73.073, 192.037, 213.053, 326.002, 326.006, 380.0651,
55 455.116, 475.455, 509.512, 559.935, 718.103, 718.105,
56 718.1255, 718.501, 718.5011, 718.502, 718.503,
57 718.504, 718.508, 718.608, 719.103, 719.1255, 719.501,
58 719.502, 719.504, 719.508, 719.608, 721.05, 721.07,
59 721.08, 721.26, 721.28, 721.301, 723.003, 723.006,
60 723.009, 723.0611, and 723.1255, F.S.; conforming
61 provisions to changes made by the act; providing an
62 effective date.
63
64 Be It Enacted by the Legislature of the State of Florida:
65
66 Section 1. Paragraph (e) of subsection (2) of section
67 20.165, Florida Statutes, is amended to read:
68 20.165 Department of Business and Professional Regulation.
69 There is created a Department of Business and Professional
70 Regulation.
71 (2) The following divisions of the Department of Business
72 and Professional Regulation are established:
73 (e) Division of Florida Condominiums, Homeowners’
74 Associations, Timeshares, and Mobile Homes. The executive
75 offices of the division shall be located in Tallahassee. The
76 division may establish and maintain branch offices throughout
77 the state.
78 Section 2. Section 718.509, Florida Statutes, is amended to
79 read:
80 718.509 Division of Florida Condominiums, Homeowners’
81 Associations, Timeshares, and Mobile Homes Trust Fund.—
82 (1) The Division of Florida Condominiums, Homeowners’
83 Associations, Timeshares, and Mobile Homes Trust Fund There is
84 created within the State Treasury the Division of Florida
85 Condominiums, Timeshares, and Mobile Homes Trust Fund to be used
86 for the administration and operation of this chapter and
87 chapters 718, 719, 721, and 723 by the division.
88 (2) All moneys collected by the division from fees, fines,
89 or penalties or from costs awarded to the division by a court or
90 administrative final order shall be paid into the Division of
91 Florida Condominiums, Homeowners’ Associations, Timeshares, and
92 Mobile Homes Trust Fund. The Legislature shall appropriate funds
93 from this trust fund sufficient to carry out the provisions of
94 this chapter and the provisions of law with respect to each
95 category of business covered by the trust fund. The division
96 shall maintain separate revenue accounts in the trust fund for
97 each of the businesses regulated by the division. The division
98 shall provide for the proportionate allocation among the
99 accounts of expenses incurred by the division in the performance
100 of its duties with respect to each of these businesses. As part
101 of its normal budgetary process, the division shall prepare an
102 annual report of revenue and allocated expenses related to the
103 operation of each of these businesses which may be used to
104 determine fees charged by the division. This subsection shall
105 operate pursuant to the provisions of s. 215.20.
106 Section 3. Subsection (7) of section 720.301, Florida
107 Statutes, is amended, present subsection (13) is renumbered as
108 subsection (14), and a new subsection (13) is added to that
109 section, to read:
110 720.301 Definitions.—As used in this chapter, the term:
111 (7) “Division” means the Division of Florida Condominiums,
112 Homeowners’ Associations, Timeshares, and Mobile Homes in the
113 Department of Business and Professional Regulation.
114 (13) “Special assessment” means any assessment levied
115 against a parcel owner other than the assessment required by a
116 budget adopted annually.
117 Section 4. Section 720.3011, Florida Statutes, is created
118 to read:
119 720.3011 Reservation of power to amend or repeal.—The
120 Legislature has the power to amend or repeal all or part of this
121 chapter at any time, and all homeowners’ associations subject to
122 this chapter shall be governed by the amendment or repeal.
123 Section 5. Subsections (1) and (2) of section 720.302,
124 Florida Statutes, are amended to read:
125 720.302 Purposes, scope, and application.—
126 (1) The purposes of this chapter are to give statutory
127 recognition to corporations not for profit that administer or
128 operate residential communities in this state, to provide
129 regulations procedures for operating homeowners’ associations,
130 and to protect the rights of association members without unduly
131 impairing the ability of such associations to perform their
132 functions as authorized by federal, state, and local laws and
133 the governing documents of the association.
134 (2) Having provided certain powers and authority to
135 homeowners’ associations and in deed restrictions created by
136 developers of mandated properties in residential communities,
137 the Legislature recognizes that it is necessary to provide
138 regulatory oversight of such associations to ensure compliance
139 with federal and state laws and local ordinances. It is the
140 intent of the Legislature to protect the rights of parcel owners
141 by ensuring that the powers and authority granted to homeowners’
142 associations and in deed restrictions created by developers of
143 mandated properties in residential communities conform to a
144 system of checks and balances in order to prevent abuses by
145 these governing authorities. Further The Legislature recognizes
146 that it is not in the best interest of homeowners’ associations
147 or the individual association members thereof to create or
148 impose a bureau or other agency of state government to regulate
149 the affairs of homeowners’ associations. However, in accordance
150 with s. 720.311, the Legislature finds that homeowners’
151 associations and their individual members will benefit from an
152 expedited alternative process for the resolution of election and
153 recall disputes and presuit mediation of other disputes
154 involving covenant enforcement and authorizes the department to
155 hear, administer, and determine these disputes as more fully set
156 forth in this chapter. Further, The Legislature recognizes that
157 certain contract rights that were created before June 14, 1995,
158 were have been created for the benefit of homeowners’
159 associations and their members thereof before the effective date
160 of this act and that this chapter is ss. 720.301-720.407 are not
161 intended to impair such contract rights, including, but not
162 limited to, the rights of the developer to complete the
163 community as initially contemplated.
164 Section 6. Section 720.3021, Florida Statutes, is created
165 to read:
166 720.3021 Division powers and duties.—
167 (1) The division has jurisdiction for, and may enforce
168 compliance with, this chapter and the adopted rules relating to
169 homeowners’ associations. The division may also:
170 (a) Issue a notice to show cause, which must provide for a
171 hearing, upon written request, in accordance with chapter 120.
172 (b) Accept grants-in-aid from any source.
173 (c) Prepare and disseminate a prospectus and other
174 information to assist prospective owners, purchasers, lessees,
175 and developers of homeowners’ associations in assessing
176 associated rights, privileges, and duties.
177 (2) The division shall:
178 (a) Respond to complaints, conduct investigations, and
179 impose penalties as provided under s. 720.3022.
180 (b) Establish procedures for providing notice to an
181 association and the developer during the period the developer
182 controls the association if the division is considering the
183 issuance of a declaratory statement with respect to the
184 homeowners’ association or any related document governing such
185 community.
186 (c) Annually provide each association with a summary of
187 declaratory statements and formal legal opinions relating to the
188 operations of homeowners’ associations which were rendered by
189 the division during the previous year.
190 (d) Provide training and educational programs for
191 homeowners’ association board members and parcel owners. The
192 training may include web-based electronic media and live
193 training and seminars in various locations throughout the state.
194 The division may review and approve education and training
195 programs offered by providers and shall maintain a current list
196 of approved programs and providers and make such list available
197 to board members and parcel owners in a reasonable and cost
198 effective manner.
199 (e) Maintain a toll-free telephone number accessible to
200 homeowners’ association parcel owners.
201 (f) Develop a program to certify both volunteer and paid
202 mediators to provide mediation of homeowners’ association
203 disputes. Upon request, the division shall provide a list of
204 such mediators to any association, parcel owner, or other
205 participant in arbitration proceedings under s. 718.1255.
206 1. Only volunteer mediators who have received at least 20
207 hours of training in mediation techniques or who have mediated
208 at least 20 disputes may be included on the list.
209 2. For initial certification by the division, paid
210 mediators must be certified by the Supreme Court to mediate
211 court cases in county or circuit courts. However, the division
212 may adopt by rule additional factors related to the mediator’s
213 experience, education, or background. To maintain certification,
214 a person initially certified as a paid mediator by the division
215 must comply with the factors or requirements adopted by rule.
216 (g) Cooperate with similar agencies in other jurisdictions
217 to establish uniform filing procedures and forms, public
218 offering statements, advertising standards, and rules and common
219 administrative practices.
220 (h) Consider notice to a developer to be complete when it
221 is delivered to the address of the developer currently on file
222 with the division.
223 (i) Adopt a seal by which it shall authenticate its
224 records. Copies of the records of the division, and certificates
225 purporting to relate the facts contained in those records, if
226 authenticated by the seal, shall be prima facie evidence of the
227 records in the courts of this state.
228 (j) Submit to the Governor, the President of the Senate,
229 and the Speaker of the House of Representatives an annual report
230 that includes, at a minimum, the number of training programs
231 provided for homeowners’ association board members and parcel
232 owners under paragraph (d); and the number of complaints
233 received by type, the number and percent of complaints
234 acknowledged in writing within 30 days, the number and percent
235 of resulting investigations conducted within 90 days, and the
236 number of investigations exceeding the 90-day requirement as
237 required under s. 720.3022(1). The annual report must also
238 include an evaluation of the division’s core business processes
239 and make recommendations for improvements, including statutory
240 changes. The report shall be submitted by September 30 following
241 the end of the fiscal year.
242 (3) The department may adopt rules to administer and
243 enforce this chapter.
244 Section 7. Section 720.3022, Florida Statutes, is created
245 to read:
246 720.3022 Complaints; investigations; service of process;
247 penalty guidelines.—
248 (1) COMPLAINTS.—The division may investigate complaints and
249 enforce compliance with respect to homeowners’ associations that
250 are still under developer control and complaints against
251 developers involving improper turnover or failure to turn over
252 pursuant to s. 720.307. After turnover has occurred, the
253 division may only investigate complaints related to financial
254 issues, elections, and parcel owner access to association
255 records pursuant to s. 720.303(4) and (5). If a complaint is
256 made, the division must conduct its inquiry with due regard for
257 the interests of the affected parties. Within 30 days after
258 receiving a complaint:
259 (a) The division shall acknowledge the complaint in writing
260 and notify the complainant as to whether the complaint is within
261 the jurisdiction of the division and whether additional
262 information is needed by the division from the complainant.
263 (b) The division shall conduct its investigation and,
264 within 90 days after receipt of the original complaint or timely
265 requested additional information, take action upon the
266 complaint. However, the failure to complete the investigation
267 within 90 days does not prevent the division from continuing the
268 investigation, accepting or considering evidence obtained or
269 received after 90 days, or taking administrative action if
270 reasonable cause exists to believe that a violation of this
271 chapter or related rule has occurred.
272 (c) If an investigation is not completed within the time
273 limits established in this subsection, the division shall, on a
274 monthly basis, notify the complainant in writing of the status
275 of the investigation.
276 (d) When reporting its action to the complainant, the
277 division shall inform the complainant of any right to a hearing
278 pursuant to ss. 120.569 and 120.57.
279 (2) INVESTIGATIONS.—The division may conduct necessary
280 public or private investigations within or outside this state to
281 determine whether there has been a violation of this chapter or
282 related rules or orders, and to aid in the adoption of needed
283 rules or forms.
284 (a) For the purpose of conducting an investigation, the
285 division director, or officer or employee designated by the
286 division director, may administer oaths or affirmations,
287 subpoena witnesses and compel their attendance, take evidence,
288 and require the production of any matter that is relevant to an
289 investigation, including the existence, description, nature,
290 custody, condition, and location of any books, documents, or
291 other tangible things and the identity and location of persons
292 having knowledge of relevant facts or any other matter
293 reasonably calculated to lead to the discovery of material
294 evidence. Upon the failure by a person to obey a subpoena or to
295 answer questions propounded by the investigating officer and
296 upon reasonable notice to all affected persons, the division may
297 apply to the circuit court for an order compelling compliance.
298 (b) The division may require or permit any person to file a
299 statement in writing, under oath or otherwise, as determined by
300 the division, as to the facts and circumstances concerning a
301 matter to be investigated.
302 (c) The division may submit any official written report,
303 worksheet, or other related paper, or a certified copy thereof,
304 compiled, prepared, drafted, or otherwise made and authenticated
305 by a financial examiner or analyst to be admitted as competent
306 evidence in any hearing in which the financial examiner or
307 analyst is available for cross-examination and attests under
308 oath that such documents were prepared as a result of an
309 examination or inspection conducted pursuant to this chapter.
310 (d) Notwithstanding any remedies available to parcel owners
311 and associations, if the division has reasonable cause to
312 believe that a violation of this chapter or related rule has
313 occurred, the division may institute enforcement proceedings in
314 its own name against any developer, association, officer, or
315 member of the board of administration, or its assignees or
316 agents, as follows:
317 1. The division may permit a person whose conduct or
318 actions may be under investigation to waive formal proceedings
319 and enter into a consent proceeding whereby orders, rules, or
320 letters of censure or warning, whether formal or informal, may
321 be entered against the person.
322 2. The division may issue an order requiring the developer,
323 association, developer-designated officer, or developer
324 designated member of the board of administration, developer
325 designated assignees or agents, community association manager,
326 or community association management firm to cease and desist
327 from the unlawful practice and take such affirmative action as
328 the division determines will carry out the purposes of this
329 chapter. If the division finds that a developer, association,
330 officer, or member of the board of administration, or its
331 assignees or agents, is violating or is about to violate this
332 chapter, any rule adopted or order issued by the division, or
333 any written agreement entered into with the division, and such
334 violation presents an immediate danger to the public requiring
335 an immediate final order, it may issue an emergency cease and
336 desist order reciting with particularity the facts underlying
337 such findings. The emergency cease and desist order is effective
338 for 90 days. If the division begins nonemergency cease and
339 desist proceedings, the emergency cease and desist order remains
340 effective until the conclusion of the proceedings under ss.
341 120.569 and 120.57.
342 3. If a developer fails to pay restitution determined by
343 the division to be owed, plus any accrued interest at the
344 highest rate permitted by law, within 30 days after expiration
345 of any appellate time period of a final order requiring payment
346 of restitution or the conclusion of any appeal, whichever is
347 later, the division shall bring an action in circuit or county
348 court on behalf of any association, class of parcel owners,
349 lessees, or purchasers for restitution, declaratory relief,
350 injunctive relief, or any other available remedy. The division
351 may also temporarily revoke its acceptance of the filing for the
352 developer to which the restitution relates until payment of
353 restitution is made.
354 4. The division may petition the court for the appointment
355 of a receiver or conservator. If appointed, the receiver or
356 conservator may take action to implement the court order to
357 ensure the performance of and to remedy any breach of the order.
358 In addition to all other means provided by law for the
359 enforcement of an injunction or temporary restraining order, the
360 circuit court may impound or sequester the property of a party
361 defendant, including books, papers, documents, and related
362 records, and allow the examination and use of the property by
363 the division and a court-appointed receiver or conservator.
364 5. The division may apply to the circuit court for an order
365 of restitution whereby the defendant in an action brought
366 pursuant to subparagraph 4. is ordered to make restitution of
367 those sums shown by the division to have been obtained by the
368 defendant in violation of this chapter. At the option of the
369 court, such restitution is payable to the conservator or
370 receiver or directly to the persons whose funds or assets were
371 obtained in violation of this chapter.
372 6. The division may impose a civil penalty against a
373 developer or association, or its assignee or agent, for any
374 violation of this chapter or related rule. The division may
375 impose a civil penalty individually against an officer or board
376 member who willfully and knowingly violates this chapter, an
377 adopted rule, or a final order of the division; may order the
378 removal of such individual as an officer or from the board of
379 administration or as an officer of the association; and may
380 prohibit such individual from serving as an officer or on the
381 board of a community association for a period of time. For
382 purposes of this section, the term “willfully and knowingly”
383 means that the division informed the officer or board member
384 that his or her action or intended action violates this chapter,
385 a related rule, or a final order of the division and that the
386 officer or board member refused to comply with this chapter, the
387 related rule, or the final order of the division. Before
388 initiating formal agency action under chapter 120, the division
389 must afford the officer or board member an opportunity to
390 voluntarily comply, and if he or she complies within 10 days,
391 the officer or board member is not subject to a civil penalty. A
392 penalty may be imposed for each day of continuing violation, but
393 may not exceed a total of $5,000.
394 7. If a parcel owner presents the division with proof that
395 the parcel owner has requested access to official records in
396 writing by certified mail, and that after 10 days the parcel
397 owner again made the same request for access to official records
398 in writing by certified mail, and that more than 10 days has
399 elapsed since the second request and the association has still
400 failed or refused to provide access to official records as
401 required by this chapter, the division shall issue a subpoena
402 requiring production of the requested records where the records
403 are kept pursuant to s. 720.303.
404 8. In addition to subparagraph 6., the division may seek
405 the imposition of a civil penalty through the circuit court for
406 any violation for which the division may issue a notice to show
407 cause under s. 720.302(11). The civil penalty must be at least
408 $500 but may not exceed $5,000 for each violation. The court may
409 also award to the prevailing party court costs and reasonable
410 attorney fees and, if the division prevails, may also award
411 reasonable costs of investigation.
412 (e) Homeowners’ association directors, officers, and
413 employees; homeowners’ association developers and community
414 association managers; and community association management firms
415 have an ongoing duty to reasonably cooperate with the division
416 in any investigation pursuant to this chapter. The division
417 shall refer to local law enforcement any person who the division
418 believes has altered, destroyed, concealed, or removed any
419 record, document, or thing required to be kept or maintained
420 under this chapter for the purpose of impairing its verity or
421 availability to the department’s investigation.
422 (f) The division may contract with agencies in this state
423 or other jurisdictions to perform investigative functions.
424 (g) The division shall establish by rule the standards for
425 reimbursement of actual verified expenses incurred in connection
426 with an onsite review or investigation.
427 (3) SERVICE OF PROCESS.—
428 (a) In addition to the methods of service provided for in
429 the Florida Rules of Civil Procedure and under state law,
430 service may be made and is binding upon a defendant or
431 respondent if the division:
432 1. Acting as the petitioner or plaintiff, immediately sends
433 a copy of the process and the pleading by certified mail to the
434 defendant or respondent at his or her last known address; and
435 2. Files an affidavit of compliance with this subsection on
436 or before the return date of the process or within the time set
437 by the court.
438 (b) If a person, including a nonresident of this state,
439 allegedly engages in conduct prohibited by this chapter or any
440 rule or order of the division, has not filed a consent to
441 service of process, and personal jurisdiction over him or her
442 cannot otherwise be obtained in this state, the director may
443 receive service of process in any noncriminal proceeding against
444 that person or his or her successor which grows out of the
445 conduct and which is brought by the division under this chapter
446 or any rule or order of the division. Such process has the same
447 force and validity as if personally served. Notice shall be
448 given as provided in paragraph (a).
449 (4) PENALTY GUIDELINES.—The division shall adopt by rule
450 penalty guidelines applicable to violations or to categories of
451 violations of this chapter or related rules. The guidelines must
452 specify a meaningful range of civil penalties for each such
453 violation of statute and rule and must be based upon the harm
454 caused by the violation, the repetition of the violation, and
455 upon such other factors deemed relevant by the division, such as
456 the size of the association or whether the violations were
457 committed by a developer- or owner-controlled association. The
458 guidelines must designate possible mitigating or aggravating
459 circumstances that might justify a departure from the range of
460 penalties provided by the rules. It is the Legislature’s intent
461 that minor violations be distinguished from those that endanger
462 the health, safety, or welfare of parcel owners or other persons
463 and that such guidelines provide reasonable and meaningful
464 notice to the public of likely penalties that may be imposed for
465 the proscribed conduct. This subsection does not limit the
466 ability of the division to informally dispose of administrative
467 actions or complaints by stipulation, agreed settlement, or
468 consent order. All amounts collected shall be deposited into the
469 Division of Florida Condominiums, Homeowners’ Associations,
470 Timeshares, and Mobile Homes Trust Fund. If a developer fails to
471 pay the civil penalty and the amount owed to the association,
472 the division shall issue an order directing that such developer
473 cease and desist from further operation until the civil penalty
474 is paid or shall pursue enforcement of the penalty through court
475 order. If an association fails to pay the civil penalty, the
476 division shall pursue enforcement through court order, and the
477 order imposing the civil penalty or the cease and desist order
478 is not effective until 20 days after the date of such order. Any
479 action commenced by the division shall be brought in the county
480 in which the division has its executive offices or in the county
481 where the violation occurred.
482 Section 8. Section 720.3023, Florida Statutes, is created
483 to read:
484 720.3023 Depositing funds.—All funds collected by the
485 division and any amounts paid as fees, fines, or penalties or
486 from costs awarded to the division by a court or administrative
487 final order under this chapter shall be deposited into the
488 Division of Florida Condominiums, Homeowners’ Associations,
489 Timeshares, and Mobile Homes Trust Fund created by s. 718.509.
490 Section 9. Section 720.3029, Florida Statutes, is created
491 to read:
492 720.3029 Homeowners’ association fees.—Effective January 1,
493 2017, each homeowners’ association that operates more than two
494 parcels must pay to the division an annual fee of $4 for each
495 residential parcel operated by the association. Beginning
496 January 1, 2017, the division may increase the fee to reflect
497 changes in the cost of living under s. 401(a)(17) of the
498 Internal Revenue Code.
499 (1) If the fee is not paid by March 1, the association
500 shall be assessed a penalty of 10 percent of the amount due and
501 will not have standing to maintain or defend any action in the
502 courts of this state until the amount due, plus any penalty, is
503 paid.
504 (2) Funds collected shall be deposited into the Division of
505 Florida Condominiums, Homeowners’ Associations, Timeshares, and
506 Mobile Homes Trust Fund. Funds shall be used by the division
507 for, but their use is not limited to, the review and approval of
508 deed restrictions before being recorded at the county level by
509 the developer or owner of the initial lots to be developed;
510 education; enforcement; investigation; and prosecution of
511 policies and procedures related to mandated properties.
512 (3) The division shall furnish each association that pays
513 fees under this section with a copy of this chapter, as amended,
514 and related rules on an annual basis.
515 Section 10. Paragraph (c) of subsection (2) of section
516 720.303, Florida Statutes, is amended to read:
517 720.303 Association powers and duties; meetings of board;
518 official records; budgets; financial reporting; association
519 funds; recalls.—
520 (2) BOARD MEETINGS.—
521 (c) The bylaws shall provide for giving notice to parcel
522 owners and members of all board meetings and, if they do not do
523 so, shall be deemed to provide the following:
524 1. Notices of all board meetings must be posted in a
525 conspicuous place in the community at least 48 hours in advance
526 of a meeting, except in an emergency. In the alternative, if
527 notice is not posted in a conspicuous place in the community,
528 notice of each board meeting must be mailed or delivered to each
529 member at least 7 days before the meeting, except in an
530 emergency. Notwithstanding this general notice requirement, for
531 communities with more than 100 members, the bylaws may provide
532 for a reasonable alternative to posting or mailing of notice for
533 each board meeting, including publication of notice, provision
534 of a schedule of board meetings, or the conspicuous posting and
535 repeated broadcasting of the notice on a closed-circuit cable
536 television system serving the homeowners’ association. However,
537 if broadcast notice is used in lieu of a notice posted
538 physically in the community, the notice must be broadcast at
539 least four times every broadcast hour of each day that a posted
540 notice is otherwise required. When broadcast notice is provided,
541 the notice and agenda must be broadcast in a manner and for a
542 sufficient continuous length of time so as to allow an average
543 reader to observe the notice and read and comprehend the entire
544 content of the notice and the agenda. The association may
545 provide notice by electronic transmission in a manner authorized
546 by law for meetings of the board of directors, committee
547 meetings requiring notice under this section, and annual and
548 special meetings of the members; however, a member must consent
549 in writing to receiving notice by electronic transmission.
550 2. An assessment may not be levied at a board meeting
551 unless the notice of the meeting includes a statement that
552 assessments will be considered and the nature of the
553 assessments. Written notice of any meeting at which special
554 assessments, increases in assessments, or amendments to
555 governing documents will be considered or at which amendments to
556 rules regarding parcel use will be considered must be mailed,
557 delivered, or electronically transmitted to the members and
558 parcel owners and posted conspicuously on the property or
559 broadcast on closed-circuit cable television not less than 14
560 days before the meeting regardless of contrary notice
561 requirements in a governing document.
562 3. Directors may not vote by proxy or by secret ballot at
563 board meetings, except that secret ballots may be used in the
564 election of officers. This subsection also applies to the
565 meetings of a any committee or other similar body, if when a
566 final decision will be made regarding the expenditure of
567 association funds, and to a any body vested with the power to
568 approve or disapprove architectural decisions with respect to a
569 specific parcel of residential property owned by a member of the
570 community.
571 Section 11. Subsection (2) of section 720.305, Florida
572 Statutes, is amended to read:
573 720.305 Obligations of members; remedies at law or in
574 equity; levy of fines and suspension of use rights.—
575 (2) If the association is authorized by its original
576 governing documents to impose fines, it may levy reasonable
577 fines. A fine may not exceed $100 per violation against any
578 member or any member’s tenant, guest, or invitee for the failure
579 of the owner of the parcel or its occupant, licensee, or invitee
580 to comply with any provision of the declaration, the association
581 bylaws, or reasonable rules of the association unless otherwise
582 provided in the governing documents. A fine may be levied by the
583 board for each day of a continuing violation, with a single
584 notice and opportunity for hearing, except that the fine may not
585 exceed $1,000 in the aggregate unless otherwise provided in the
586 governing documents. A fine of less than $1,000 may not become a
587 lien against a parcel. In any action to recover a fine, the
588 prevailing party is entitled to reasonable attorney fees and
589 costs from the nonprevailing party as determined by the court.
590 (a) An association may suspend, for a reasonable period of
591 time, the right of a member, or a member’s tenant, guest, or
592 invitee, to use common areas and facilities for the failure of
593 the owner of the parcel or its occupant, licensee, or invitee to
594 comply with any provision of the declaration, the association
595 bylaws, or reasonable rules of the association. This paragraph
596 does not apply to that portion of common areas used to provide
597 access or utility services to the parcel. A suspension may not
598 prohibit an owner or tenant of a parcel from having vehicular
599 and pedestrian ingress to and egress from the parcel, including,
600 but not limited to, the right to park.
601 (b) A fine or suspension may not be imposed by the board of
602 administration without at least 14 days’ notice to the person
603 sought to be fined or suspended and an opportunity for a hearing
604 before a committee of at least three members appointed by the
605 board who are not officers, directors, or employees of the
606 association, or the spouse, parent, child, brother, or sister of
607 an officer, director, or employee. If the committee, by majority
608 vote, does not approve a proposed fine or suspension, it may not
609 be imposed. The role of the committee is limited to determining
610 whether to confirm or reject the fine or suspension levied by
611 the board. If the board of administration imposes a fine or
612 suspension, the association must provide written notice of such
613 fine or suspension by mail or hand delivery to the parcel owner
614 and, if applicable, to any tenant, licensee, or invitee of the
615 parcel owner.
616 Section 12. Paragraphs (a) and (b) of subsection (1) and
617 subsections (2), (4), (5), (6), (8), and (9) of section 720.306,
618 Florida Statutes, are amended to read:
619 720.306 Meetings of members; voting and election
620 procedures; amendments.—
621 (1) QUORUM; AMENDMENTS.—
622 (a) Unless a lower number is provided in the bylaws, the
623 percentage of voting interests required for to constitute a
624 quorum at a meeting of the members is shall be 30 percent of the
625 total voting interests. Unless otherwise provided in this
626 chapter or in the articles of incorporation or bylaws, decisions
627 that require a vote of the members must be approved made by the
628 concurrence of at least a majority of the voting interests
629 present, in person or by proxy, at a meeting at which a quorum
630 is present has been attained. A meeting of the members must be
631 held at a location that is accessible to a physically
632 handicapped person if requested by a physically handicapped
633 person who has a right to attend the meeting.
634 (b) Unless otherwise provided in the governing documents or
635 required by law, and other than those matters set forth in
636 paragraph (c), the bylaws or articles of incorporation any
637 governing document of an association may be amended by the
638 affirmative vote of two-thirds of the voting interests of the
639 association, and the declaration may be amended by the
640 affirmative vote of parcel owners representing two-thirds of the
641 voting interests of the affected parcels. Within 30 days after
642 recording an amendment to the governing documents, the
643 association shall provide copies of the amendment to the
644 members. However, if a copy of the proposed amendment is
645 provided to the members before they vote on the amendment and
646 the proposed amendment is not changed before the vote, the
647 association, in lieu of providing a copy of the amendment, may
648 provide notice to the members that the amendment was adopted,
649 identifying the official book and page number or instrument
650 number of the recorded amendment and that a copy of the
651 amendment is available at no charge to the member upon written
652 request to the association. The copies and notice described in
653 this paragraph may be provided electronically to those owners
654 who previously consented to receive notice electronically. The
655 failure to timely provide notice of the recording of the
656 amendment does not affect the validity or enforceability of the
657 amendment.
658 (2) ANNUAL MEETING.—The members association shall hold an
659 annual a meeting of its members annually for the transaction of
660 any and all proper business at a time, date, and place stated
661 in, or fixed in accordance with, the bylaws. If the bylaws are
662 silent as to the location, the annual meeting and all other
663 membership meetings shall be held within 45 miles of the
664 association property. The election of directors, if one is
665 required to be held, must be held at, or in conjunction with,
666 the annual meeting or as provided in the governing documents.
667 (4) CONTENT OF NOTICE.—Unless law or the governing
668 documents require otherwise, notice of an annual meeting is not
669 required to need not include a description of the purpose or
670 purposes for which the meeting is called. Notice of a special
671 meeting must include a description of the purpose or purposes
672 for which the meeting is called.
673 (5) NOTICE OF MEETINGS.—The bylaws must shall provide for
674 giving notice to members of all member meetings, and if they do
675 not do so shall be deemed to provide the following: The
676 association shall give all parcel owners and members actual
677 notice of all membership meetings, which shall be mailed,
678 delivered, or electronically transmitted to the members not less
679 than 14 days before prior to the meeting. Evidence of compliance
680 with this 14-day notice shall be made by an affidavit executed
681 by the person providing the notice and filed upon execution
682 among the official records of the association. In addition to
683 mailing, delivering, or electronically transmitting the notice
684 of any meeting, the association may, by reasonable rule, adopt a
685 procedure for conspicuously posting and repeatedly broadcasting
686 the notice and the agenda on a closed-circuit cable television
687 system serving the association. If When broadcast notice is
688 provided, the notice and agenda must be broadcast in a manner
689 and for a sufficient continuous length of time so as to allow an
690 average reader to observe the notice and read and comprehend the
691 entire content of the notice and the agenda.
692 (6) RIGHT TO SPEAK.—Members and parcel owners have the
693 right to attend all membership meetings and to speak at any
694 meeting with reference to all items opened for discussion or
695 included on the agenda. Notwithstanding any provision to the
696 contrary in the governing documents or any rules adopted by the
697 board or by the membership, a member and a parcel owner have the
698 right to speak for at least 3 minutes on any item. The
699 association may adopt written reasonable written rules governing
700 the frequency, duration, and other manner of member and parcel
701 owner statements, and which are rules must be consistent with
702 this subsection.
703 (8) PROXY VOTING.—The members have the right, unless
704 otherwise provided in this subsection or in the governing
705 documents, to vote in person or by proxy.
706 (a) Members voting by limited proxy must use a form
707 substantially conforming to a limited proxy form adopted by the
708 division. Limited proxies must be used for:
709 1. Votes taken to waive or reduce reserves in accordance
710 with s. 720.303(6);
711 2. Votes taken to waive the financial reporting
712 requirements of s. 720.303(7);
713 3. Votes taken to amend the declaration;
714 4. Votes taken to amend the articles of incorporation or
715 bylaws pursuant to this section; and
716 5. Any other matter for which this chapter requires or
717 permits a vote of the parcel owners.
718 (b) General proxies may be used for other matters for which
719 limited proxies are not required and also may be used in voting
720 for nonsubstantive changes to items for which a limited proxy is
721 required and given.
722 (c) Limited proxies and general proxies may be used to
723 establish a quorum.
724 (d) Voting interests or consent rights allocated to a
725 parcel owned by the association may not be exercised or
726 considered for any purpose, whether for a quorum, an election,
727 or otherwise.
728 (e) Any proxy given is effective only for the specific
729 meeting for which originally given and any lawfully adjourned
730 meetings thereof. In no event is a proxy valid for longer than
731 90 days after the date of the first meeting for which it was
732 given. Every proxy is revocable at any time at the pleasure of
733 the parcel owner executing it.
734 (f) This subsection does not limit the use of general
735 proxies, require the use of limited proxies for any agenda item
736 or election at any meeting of a homeowners’ association, or
737 prohibit parcel owners from voting in person at parcel owner
738 meetings.
739 (a) To be valid, a proxy must be dated, must state the
740 date, time, and place of the meeting for which it was given, and
741 must be signed by the authorized person who executed the proxy.
742 A proxy is effective only for the specific meeting for which it
743 was originally given, as the meeting may lawfully be adjourned
744 and reconvened from time to time, and automatically expires 90
745 days after the date of the meeting for which it was originally
746 given. A proxy is revocable at any time at the pleasure of the
747 person who executes it. If the proxy form expressly so provides,
748 any proxy holder may appoint, in writing, a substitute to act in
749 his or her place.
750 (b) If the governing documents permit voting by secret
751 ballot by members who are not in attendance at a meeting of the
752 members for the election of directors, such ballots must be
753 placed in an inner envelope with no identifying markings and
754 mailed or delivered to the association in an outer envelope
755 bearing identifying information reflecting the name of the
756 member, the lot or parcel for which the vote is being cast, and
757 the signature of the lot or parcel owner casting that ballot. If
758 the eligibility of the member to vote is confirmed and no other
759 ballot has been submitted for that lot or parcel, the inner
760 envelope shall be removed from the outer envelope bearing the
761 identification information, placed with the ballots which were
762 personally cast, and opened when the ballots are counted. If
763 more than one ballot is submitted for a lot or parcel, the
764 ballots for that lot or parcel shall be disqualified. Any vote
765 by ballot received after the closing of the balloting may not be
766 considered.
767 (9) ELECTIONS AND BOARD VACANCIES.—
768 (a) Unless the governing documents provide otherwise, a
769 vacancy on the board of directors caused by the expiration of a
770 director’s term shall be filled by electing a new board member.
771 This section applies to any mandatory association that governs
772 10 parcels or more. The election must occur on the date of the
773 annual meeting.
774 1. An election is not required unless more candidates file
775 notices of intent to run or are nominated than board vacancies
776 exist. If the number of board members whose terms expire at the
777 annual meeting equals or exceeds the number of candidates, the
778 candidates become members of the board effective upon the
779 adjournment of the annual meeting.
780 2. If the governing documents permit staggered terms of up
781 to 2 years, and upon approval of a majority of the total voting
782 interests, the association board members may serve 2-year
783 staggered terms. If the staggered term of a board member does
784 not expire until a later annual meeting, or if all members’
785 terms would otherwise expire but there are no candidates, the
786 terms of all board members expire at the annual meeting, and
787 such members may stand for reelection unless prohibited by the
788 governing documents.
789 3. Unless the governing documents provide otherwise, any
790 remaining vacancies shall be filled by the affirmative vote of
791 the majority of the directors making up the newly constituted
792 board even if the directors constitute less than a quorum or
793 there is only one director.
794 4. For purposes of this paragraph, the term “candidate”
795 means an eligible person who has timely submitted the written
796 notice, as described in subparagraph (c)2., of his or her
797 intention to become a candidate.
798 (b) Any parcel owner desiring to be a candidate for board
799 membership must be eligible to serve on the board of directors
800 at the time of the deadline for submitting a notice of intent to
801 run as provided in subparagraph (c)2. in order to have his or
802 her name listed as a proper candidate on the ballot. A parcel
803 owner may not be a candidate for or serve on the board of
804 directors if:
805 1. He or she is delinquent in the payment of any fee, fine,
806 or special or regular assessment as provided in paragraph (d).
807 2. In a homeowners’ association of more than 10 parcels, he
808 or she is the co-owner of a parcel and another co-owner of the
809 same parcel is a member of the board of directors at the same
810 time unless they own more than one parcel or there are not
811 enough eligible candidates to fill the vacancies on the board at
812 the time of the vacancy.
813 (c) The members of the board shall be elected by secret
814 ballot using a written ballot or voting machine. Proxies may not
815 be used in electing the board in general elections or elections
816 to fill vacancies caused by recall or resignation unless
817 otherwise provided in this chapter.
818 1. At least 60 days before a scheduled election, the
819 association shall mail, deliver, or electronically transmit by
820 separate association mailing or by inclusion in another
821 association mailing, delivery, or transmission, including
822 regularly published newsletters, to each parcel owner entitled
823 to a vote a first notice of the date of the election.
824 2. Any parcel owner or other eligible person desiring to be
825 a candidate for the board must give written notice of his or her
826 intent to be a candidate to the association at least 40 days
827 before the scheduled election.
828 3. Together with the notice and agenda required under
829 subsection (5), the association shall mail, deliver, or
830 electronically transmit a second notice of the election to all
831 parcel owners entitled to vote which includes a ballot that
832 lists all candidates. Upon request of a candidate, an
833 information sheet no larger than 8 1/2 inches by 11 inches,
834 which must be furnished by the candidate at least 35 days before
835 the election, must be included with the mailing, delivery, or
836 transmission of the ballot, with the costs of mailing, delivery,
837 or electronic transmission and copying to be borne by the
838 association. The association is not liable for the contents of
839 an information sheet prepared by a candidate. In order to reduce
840 costs, the association may print or duplicate the information
841 sheets on both sides of the paper.
842 4. Elections shall be decided by a plurality of ballots
843 cast. There is no quorum requirement; however, at least 20
844 percent of the eligible voters must cast a ballot in order to
845 have a valid election. A parcel owner may not permit any other
846 person to vote his or her ballot, and any ballots improperly
847 cast are invalid. A parcel owner who violates this provision may
848 be fined by the association in accordance with s. 720.305. A
849 parcel owner who needs assistance in casting the ballot for the
850 reasons stated in s. 101.051 may obtain such assistance.
851 5. The division shall establish by rule voting procedures
852 consistent with this paragraph, including rules establishing
853 procedures for giving notice by electronic transmission and
854 rules providing for the secrecy of ballots.
855 (a) Elections of directors must be conducted in accordance
856 with the procedures set forth in the governing documents of the
857 association. Except as provided in paragraph (b), all members of
858 the association are eligible to serve on the board of directors,
859 and a member may nominate himself or herself as a candidate for
860 the board at a meeting where the election is to be held;
861 provided, however, that if the election process allows
862 candidates to be nominated in advance of the meeting, the
863 association is not required to allow nominations at the meeting.
864 An election is not required unless more candidates are nominated
865 than vacancies exist. Except as otherwise provided in the
866 governing documents, boards of directors must be elected by a
867 plurality of the votes cast by eligible voters. Any challenge to
868 the election process must be commenced within 60 days after the
869 election results are announced.
870 (d)(b) A person who is delinquent in the payment of any
871 fee, fine, or other monetary obligation to the association on
872 the day that he or she could last nominate himself or herself or
873 be nominated for the board may not seek election to the board,
874 and his or her name shall not be listed on the ballot. A person
875 serving as a board member who becomes more than 90 days
876 delinquent in the payment of any fee, fine, or other monetary
877 obligation to the association shall be deemed to have abandoned
878 his or her seat on the board, creating a vacancy on the board to
879 be filled according to law. For purposes of this paragraph, the
880 term “any fee, fine, or other monetary obligation” means any
881 delinquency to the association with respect to any parcel. A
882 person who has been convicted of any felony in this state or in
883 a United States District or Territorial Court, or has been
884 convicted of any offense in another jurisdiction which would be
885 considered a felony if committed in this state, may not seek
886 election to the board and is not eligible for board membership
887 unless such felon’s civil rights have been restored for at least
888 5 years as of the date on which such person seeks election to
889 the board. The validity of any action by the board is not
890 affected if it is later determined that a person was ineligible
891 to seek election to the board or that a member of the board is
892 ineligible for board membership.
893 (e)(c) Any election dispute between a member and an
894 association must be submitted to mandatory binding arbitration
895 with the division. Such proceedings must be conducted in the
896 manner provided by s. 718.1255 and the procedural rules adopted
897 by the division. Any challenge to the election process must be
898 commenced within 60 days after the election results are
899 announced.
900 1. Unless otherwise provided in the governing documents
901 bylaws, any vacancy occurring on the board before the expiration
902 of a term may be filled by an affirmative vote of the majority
903 of the remaining directors, even if the remaining directors
904 constitute less than a quorum, or by the sole remaining
905 director. In the alternative, a board may hold an election to
906 fill the vacancy, in which case the election procedures must
907 conform to the requirements of the governing documents.
908 2. Unless otherwise provided in the governing documents
909 bylaws, a board member appointed or elected under this section
910 is appointed for the unexpired term of the seat being filled.
911 Filling vacancies created by recall is governed by s.
912 720.303(10) and rules adopted by the division.
913 Section 13. Subsection (5) of section 720.307, Florida
914 Statutes, is amended to read:
915 720.307 Transition of association control in a community.
916 With respect to homeowners’ associations:
917 (5) This section does not apply to a homeowners’
918 association in existence on the effective date of this act, or
919 to a homeowners’ association, no matter when created, if such
920 association is created in a community that is included in an
921 effective development-of-regional-impact development order as of
922 the effective date of this act, together with any approved
923 modifications thereof.
924 Section 14. Subsection (2) of section 73.073, Florida
925 Statutes, is amended to read:
926 73.073 Eminent domain procedure with respect to condominium
927 common elements.—
928 (2) With respect to the exercise of eminent domain or a
929 negotiated sale for the purchase or taking of a portion of the
930 common elements of a condominium, the condemning authority shall
931 have the responsibility of contacting the condominium
932 association and acquiring the most recent rolls indicating the
933 names of the unit owners or contacting the appropriate taxing
934 authority to obtain the names of the owners of record on the tax
935 rolls. Notification shall be sent by certified mail, return
936 receipt requested, to the unit owners of record of the
937 condominium units by the condemning authority indicating the
938 intent to purchase or take the required property and requesting
939 a response from the unit owner. The condemning authority shall
940 be responsible for the expense of sending notification pursuant
941 to this section. Such notice shall, at a minimum, include:
942 (a) The name and address of the condemning authority.
943 (b) A written or visual description of the property.
944 (c) The public purpose for which the property is needed.
945 (d) The appraisal value of the property.
946 (e) A clear, concise statement relating to the unit owner’s
947 right to object to the taking or appraisal value and the
948 procedures and effects of exercising that right.
949 (f) A clear, concise statement relating to the power of the
950 association to convey the property on behalf of the unit owners
951 if no objection to the taking or appraisal value is raised, and
952 the effects of this alternative on the unit owner.
953
954 The Division of Florida Condominiums, Homeowners’ Associations,
955 Timeshares, and Mobile Homes of the Department of Business and
956 Professional Regulation may adopt, by rule, a standard form for
957 such notice and may require the notice to include any additional
958 relevant information.
959 Section 15. Paragraph (e) of subsection (6) of section
960 192.037, Florida Statutes, is amended to read:
961 192.037 Fee timeshare real property; taxes and assessments;
962 escrow.—
963 (6)
964 (e) On or before May 1 of each year, a statement of
965 receipts and disbursements of the escrow account must be filed
966 with the Division of Florida Condominiums, Homeowners’
967 Associations, Timeshares, and Mobile Homes of the Department of
968 Business and Professional Regulation, which may enforce this
969 paragraph pursuant to s. 721.26. This statement must
970 appropriately show the amount of principal and interest in such
971 account.
972 Section 16. Paragraph (i) of subsection (8) of section
973 213.053, Florida Statutes, is amended to read:
974 213.053 Confidentiality and information sharing.—
975 (8) Notwithstanding any other provision of this section,
976 the department may provide:
977 (i) Information relative to chapters 212 and 326 to the
978 Division of Florida Condominiums, Homeowners’ Associations,
979 Timeshares, and Mobile Homes of the Department of Business and
980 Professional Regulation in the conduct of its official duties.
981
982 Disclosure of information under this subsection shall be
983 pursuant to a written agreement between the executive director
984 and the agency. Such agencies, governmental or nongovernmental,
985 shall be bound by the same requirements of confidentiality as
986 the Department of Revenue. Breach of confidentiality is a
987 misdemeanor of the first degree, punishable as provided by s.
988 775.082 or s. 775.083.
989 Section 17. Subsection (2) of section 326.002, Florida
990 Statutes, is amended to read:
991 326.002 Definitions.—As used in ss. 326.001-326.006, the
992 term:
993 (2) “Division” means the Division of Florida Condominiums,
994 Homeowners’ Associations, Timeshares, and Mobile Homes of the
995 Department of Business and Professional Regulation.
996 Section 18. Paragraph (d) of subsection (2) and subsection
997 (3) of section 326.006, Florida Statutes, are amended to read:
998 326.006 Powers and duties of division.—
999 (2) The division has the power to enforce and ensure
1000 compliance with the provisions of this chapter and rules adopted
1001 under this chapter relating to the sale and ownership of yachts
1002 and ships. In performing its duties, the division has the
1003 following powers and duties:
1004 (d) Notwithstanding any remedies available to a yacht or
1005 ship purchaser, if the division has reasonable cause to believe
1006 that a violation of any provision of this chapter or rule
1007 adopted under this chapter has occurred, the division may
1008 institute enforcement proceedings in its own name against any
1009 broker or salesperson or any of his or her assignees or agents,
1010 or against any unlicensed person or any of his or her assignees
1011 or agents, as follows:
1012 1. The division may permit a person whose conduct or
1013 actions are under investigation to waive formal proceedings and
1014 enter into a consent proceeding whereby orders, rules, or
1015 letters of censure or warning, whether formal or informal, may
1016 be entered against the person.
1017 2. The division may issue an order requiring the broker or
1018 salesperson or any of his or her assignees or agents, or
1019 requiring any unlicensed person or any of his or her assignees
1020 or agents, to cease and desist from the unlawful practice and
1021 take such affirmative action as in the judgment of the division
1022 will carry out the purposes of this chapter.
1023 3. The division may bring an action in circuit court on
1024 behalf of a class of yacht or ship purchasers for declaratory
1025 relief, injunctive relief, or restitution.
1026 4. The division may impose a civil penalty against a broker
1027 or salesperson or any of his or her assignees or agents, or
1028 against an unlicensed person or any of his or her assignees or
1029 agents, for any violation of this chapter or a rule adopted
1030 under this chapter. A penalty may be imposed for each day of
1031 continuing violation, but in no event may the penalty for any
1032 offense exceed $10,000. All amounts collected must be deposited
1033 with the Chief Financial Officer to the credit of the Division
1034 of Florida Condominiums, Homeowners’ Associations, Timeshares,
1035 and Mobile Homes Trust Fund. If a broker, salesperson, or
1036 unlicensed person working for a broker, fails to pay the civil
1037 penalty, the division shall issue an order suspending the
1038 broker’s license until such time as the civil penalty is paid or
1039 may pursue enforcement of the penalty in a court of competent
1040 jurisdiction. The order imposing the civil penalty or the order
1041 of suspension may not become effective until 20 days after the
1042 date of such order. Any action commenced by the division must be
1043 brought in the county in which the division has its executive
1044 offices or in the county where the violation occurred.
1045 (3) All fees must be deposited in the Division of Florida
1046 Condominiums, Homeowners’ Associations, Timeshares, and Mobile
1047 Homes Trust Fund as provided by law.
1048 Section 19. Paragraph (a) of subsection (4) of section
1049 380.0651, Florida Statutes, is amended to read:
1050 380.0651 Statewide guidelines and standards.—
1051 (4) Two or more developments, represented by their owners
1052 or developers to be separate developments, shall be aggregated
1053 and treated as a single development under this chapter when they
1054 are determined to be part of a unified plan of development and
1055 are physically proximate to one other.
1056 (a) The criteria of three of the following subparagraphs
1057 must be met in order for the state land planning agency to
1058 determine that there is a unified plan of development:
1059 1.a. The same person has retained or shared control of the
1060 developments;
1061 b. The same person has ownership or a significant legal or
1062 equitable interest in the developments; or
1063 c. There is common management of the developments
1064 controlling the form of physical development or disposition of
1065 parcels of the development.
1066 2. There is a reasonable closeness in time between the
1067 completion of 80 percent or less of one development and the
1068 submission to a governmental agency of a master plan or series
1069 of plans or drawings for the other development which is
1070 indicative of a common development effort.
1071 3. A master plan or series of plans or drawings exists
1072 covering the developments sought to be aggregated which have
1073 been submitted to a local general-purpose government, water
1074 management district, the Florida Department of Environmental
1075 Protection, or the Division of Florida Condominiums, Homeowners’
1076 Associations, Timeshares, and Mobile Homes for authorization to
1077 commence development. The existence or implementation of a
1078 utility’s master utility plan required by the Public Service
1079 Commission or general-purpose local government or a master
1080 drainage plan may shall not be the sole determinant of the
1081 existence of a master plan.
1082 4. There is a common advertising scheme or promotional plan
1083 in effect for the developments sought to be aggregated.
1084 Section 20. Subsection (5) of section 455.116, Florida
1085 Statutes, is amended to read:
1086 455.116 Regulation trust funds.—The following trust funds
1087 shall be placed in the department:
1088 (5) Division of Florida Condominiums, Homeowners’
1089 Associations, Timeshares, and Mobile Homes Trust Fund.
1090 Section 21. Section 475.455, Florida Statutes, is amended
1091 to read:
1092 475.455 Exchange of disciplinary information.—The
1093 commission shall inform the Division of Florida Condominiums,
1094 Homeowners’ Associations, Timeshares, and Mobile Homes of the
1095 Department of Business and Professional Regulation of any
1096 disciplinary action the commission has taken against any of its
1097 licensees. The division shall inform the commission of any
1098 disciplinary action the division has taken against any broker or
1099 sales associate registered with the division.
1100 Section 22. Section 509.512, Florida Statutes, is amended
1101 to read:
1102 509.512 Timeshare plan developer and exchange company
1103 exemption.—Sections 509.501-509.511 do not apply to a developer
1104 of a timeshare plan or an exchange company approved by the
1105 Division of Florida Condominiums, Homeowners’ Associations,
1106 Timeshares, and Mobile Homes pursuant to chapter 721, but only
1107 to the extent that the developer or exchange company engages in
1108 conduct regulated under chapter 721.
1109 Section 23. Subsection (1) of section 559.935, Florida
1110 Statutes, is amended to read:
1111 559.935 Exemptions.—
1112 (1) This part does not apply to:
1113 (a) A bona fide employee of a seller of travel who is
1114 engaged solely in the business of her or his employer;
1115 (b) Any direct common carrier of passengers or property
1116 regulated by an agency of the Federal Government or employees of
1117 such carrier when engaged solely in the transportation business
1118 of the carrier as identified in the carrier’s certificate;
1119 (c) An intrastate common carrier of passengers or property
1120 selling only transportation as defined in the applicable state
1121 or local registration or certification, or employees of such
1122 carrier when engaged solely in the transportation business of
1123 the carrier;
1124 (d) Hotels, motels, or other places of public accommodation
1125 selling public accommodations, or employees of such hotels,
1126 motels, or other places of public accommodation, when engaged
1127 solely in making arrangements for lodging, accommodations, or
1128 sightseeing tours within the state, or taking reservations for
1129 the traveler with times, dates, locations, and accommodations
1130 certain at the time the reservations are made, provided that
1131 hotels and motels registered with the Department of Business and
1132 Professional Regulation pursuant to chapter 509 are excluded
1133 from the provisions of this chapter;
1134 (e) Persons involved solely in the rental, leasing, or sale
1135 of residential property;
1136 (f) Persons involved solely in the rental, leasing, or sale
1137 of transportation vehicles;
1138 (g) Persons who make travel arrangements for themselves;
1139 for their employees or agents; for distributors, franchisees, or
1140 dealers of the persons’ products or services; for entities which
1141 are financially related to the persons; or for the employees or
1142 agents of the distributor, franchisee, or dealer or financially
1143 related entity;
1144 (h) A developer of a timeshare plan or an exchange company
1145 approved by the Division of Florida Condominiums, Homeowners’
1146 Associations, Timeshares, and Mobile Homes pursuant to chapter
1147 721, but only to the extent that the developer or exchange
1148 company engages in conduct regulated under chapter 721; or
1149 (i) Persons or entities engaged solely in offering diving
1150 services, including classes and sales or rentals of equipment,
1151 when engaged in making any prearranged travel-related or
1152 tourist-related services in conjunction with a primarily dive
1153 related event.
1154 Section 24. Subsection (17) of section 718.103, Florida
1155 Statutes, is amended to read:
1156 718.103 Definitions.—As used in this chapter, the term:
1157 (17) “Division” means the Division of Florida Condominiums,
1158 Homeowners’ Associations, Timeshares, and Mobile Homes of the
1159 Department of Business and Professional Regulation.
1160 Section 25. Paragraph (c) of subsection (4) of section
1161 718.105, Florida Statutes, is amended to read:
1162 718.105 Recording of declaration.—
1163 (4)
1164 (c) If the sum of money held by the clerk has not been paid
1165 to the developer or association as provided in paragraph (b)
1166 within 5 years after the date the declaration was originally
1167 recorded, the clerk may notify, in writing, the registered agent
1168 of the association that the sum is still available and the
1169 purpose for which it was deposited. If the association does not
1170 record the certificate within 90 days after the clerk has given
1171 the notice, the clerk may disburse the money to the developer.
1172 If the developer cannot be located, the clerk shall disburse the
1173 money to the Division of Florida Condominiums, Homeowners’
1174 Associations, Timeshares, and Mobile Homes for deposit in the
1175 Division of Florida Condominiums, Homeowners’ Associations,
1176 Timeshares, and Mobile Homes Trust Fund.
1177 Section 26. Subsection (4) of section 718.1255, Florida
1178 Statutes, is amended to read:
1179 718.1255 Alternative dispute resolution; voluntary
1180 mediation; mandatory nonbinding arbitration; legislative
1181 findings.—
1182 (4) MANDATORY NONBINDING ARBITRATION AND MEDIATION OF
1183 DISPUTES.—The Division of Florida Condominiums, Homeowners’
1184 Associations, Timeshares, and Mobile Homes of the Department of
1185 Business and Professional Regulation shall employ full-time
1186 attorneys to act as arbitrators to conduct the arbitration
1187 hearings provided by this chapter. The division may also certify
1188 attorneys who are not employed by the division to act as
1189 arbitrators to conduct the arbitration hearings provided by this
1190 section. No person may be employed by the department as a full
1191 time arbitrator unless he or she is a member in good standing of
1192 The Florida Bar. The department shall adopt rules of procedure
1193 to govern such arbitration hearings including mediation incident
1194 thereto. The decision of an arbitrator shall be final but may;
1195 however, a decision shall not be deemed final agency action.
1196 Nothing in this subsection may provision shall be construed to
1197 foreclose parties from proceeding in a trial de novo unless the
1198 parties have agreed that the arbitration is binding. If judicial
1199 proceedings are initiated, the final decision of the arbitrator
1200 shall be admissible in evidence in the trial de novo.
1201 (a) Before prior to the institution of court litigation, a
1202 party to a dispute shall petition the division for nonbinding
1203 arbitration. The petition must be accompanied by a filing fee in
1204 the amount of $50. Filing fees collected under this section must
1205 be used to defray the expenses of the alternative dispute
1206 resolution program.
1207 (b) The petition must recite, and have attached thereto,
1208 supporting proof that the petitioner gave the respondents:
1209 1. Advance written notice of the specific nature of the
1210 dispute;
1211 2. A demand for relief, and a reasonable opportunity to
1212 comply or to provide the relief; and
1213 3. Notice of the intention to file an arbitration petition
1214 or other legal action in the absence of a resolution of the
1215 dispute.
1216
1217 Failure to include the allegations or proof of compliance with
1218 these prerequisites requires dismissal of the petition without
1219 prejudice.
1220 (c) Upon receipt, the petition shall be promptly reviewed
1221 by the division to determine the existence of a dispute and
1222 compliance with the requirements of paragraphs (a) and (b). If
1223 emergency relief is required and is not available through
1224 arbitration, a motion to stay the arbitration may be filed. The
1225 motion must be accompanied by a verified petition alleging facts
1226 that, if proven, would support entry of a temporary injunction,
1227 and if an appropriate motion and supporting papers are filed,
1228 the division may abate the arbitration pending a court hearing
1229 and disposition of a motion for temporary injunction.
1230 (d) Upon determination by the division that a dispute
1231 exists and that the petition substantially meets the
1232 requirements of paragraphs (a) and (b) and any other applicable
1233 rules, a copy of the petition shall be served by the division
1234 upon all respondents.
1235 (e) Before or after the filing of the respondents’ answer
1236 to the petition, any party may request that the arbitrator refer
1237 the case to mediation under this section and any rules adopted
1238 by the division. Upon receipt of a request for mediation, the
1239 division shall promptly contact the parties to determine if
1240 there is agreement that mediation would be appropriate. If all
1241 parties agree, the dispute must be referred to mediation.
1242 Notwithstanding a lack of an agreement by all parties, the
1243 arbitrator may refer a dispute to mediation at any time.
1244 (f) Upon referral of a case to mediation, the parties must
1245 select a mutually acceptable mediator. To assist in the
1246 selection, the arbitrator shall provide the parties with a list
1247 of both volunteer and paid mediators that have been certified by
1248 the division under s. 718.501. If the parties are unable to
1249 agree on a mediator within the time allowed by the arbitrator,
1250 the arbitrator shall appoint a mediator from the list of
1251 certified mediators. If a case is referred to mediation, the
1252 parties shall attend a mediation conference, as scheduled by the
1253 parties and the mediator. If any party fails to attend a duly
1254 noticed mediation conference, without the permission or approval
1255 of the arbitrator or mediator, the arbitrator must impose
1256 sanctions against the party, including the striking of any
1257 pleadings filed, the entry of an order of dismissal or default
1258 if appropriate, and the award of costs and attorney attorneys’
1259 fees incurred by the other parties. Unless otherwise agreed to
1260 by the parties or as provided by order of the arbitrator, a
1261 party is deemed to have appeared at a mediation conference by
1262 the physical presence of the party or its representative having
1263 full authority to settle without further consultation, provided
1264 that an association may comply by having one or more
1265 representatives present with full authority to negotiate a
1266 settlement and recommend that the board of administration ratify
1267 and approve such a settlement within 5 days from the date of the
1268 mediation conference. The parties shall share equally the
1269 expense of mediation, unless they agree otherwise.
1270 (g) The purpose of mediation as provided for by this
1271 section is to present the parties with an opportunity to resolve
1272 the underlying dispute in good faith, and with a minimum
1273 expenditure of time and resources.
1274 (h) Mediation proceedings must generally be conducted in
1275 accordance with the Florida Rules of Civil Procedure, and these
1276 proceedings are privileged and confidential to the same extent
1277 as court-ordered mediation. Persons who are not parties to the
1278 dispute are not allowed to attend the mediation conference
1279 without the consent of all parties, with the exception of
1280 counsel for the parties and corporate representatives designated
1281 to appear for a party. If the mediator declares an impasse after
1282 a mediation conference has been held, the arbitration proceeding
1283 terminates, unless all parties agree in writing to continue the
1284 arbitration proceeding, in which case the arbitrator’s decision
1285 shall be binding or nonbinding, as agreed upon by the parties;
1286 in the arbitration proceeding, the arbitrator may shall not
1287 consider any evidence relating to the unsuccessful mediation
1288 except in a proceeding to impose sanctions for failure to appear
1289 at the mediation conference. If the parties do not agree to
1290 continue arbitration, the arbitrator shall enter an order of
1291 dismissal, and either party may institute a suit in a court of
1292 competent jurisdiction. The parties may seek to recover any
1293 costs and attorney attorneys’ fees incurred in connection with
1294 arbitration and mediation proceedings under this section as part
1295 of the costs and fees that may be recovered by the prevailing
1296 party in any subsequent litigation.
1297 (i) Arbitration shall be conducted according to rules
1298 adopted by the division. The filing of a petition for
1299 arbitration shall toll the applicable statute of limitations.
1300 (j) At the request of any party to the arbitration, the
1301 arbitrator shall issue subpoenas for the attendance of witnesses
1302 and the production of books, records, documents, and other
1303 evidence and any party on whose behalf a subpoena is issued may
1304 apply to the court for orders compelling such attendance and
1305 production. Subpoenas shall be served and shall be enforceable
1306 in the manner provided by the Florida Rules of Civil Procedure.
1307 Discovery may, in the discretion of the arbitrator, be permitted
1308 in the manner provided by the Florida Rules of Civil Procedure.
1309 Rules adopted by the division may authorize any reasonable
1310 sanctions except contempt for a violation of the arbitration
1311 procedural rules of the division or for the failure of a party
1312 to comply with a reasonable nonfinal order issued by an
1313 arbitrator which is not under judicial review.
1314 (k) The arbitration decision shall be presented to the
1315 parties in writing. An arbitration decision is final in those
1316 disputes in which the parties have agreed to be bound. An
1317 arbitration decision is also final if a complaint for a trial de
1318 novo is not filed in a court of competent jurisdiction in which
1319 the condominium is located within 30 days. The right to file for
1320 a trial de novo entitles the parties to file a complaint in the
1321 appropriate trial court for a judicial resolution of the
1322 dispute. The prevailing party in an arbitration proceeding shall
1323 be awarded the costs of the arbitration and reasonable attorney
1324 attorney’s fees in an amount determined by the arbitrator. Such
1325 an award shall include the costs and reasonable attorney
1326 attorney’s fees incurred in the arbitration proceeding as well
1327 as the costs and reasonable attorney attorney’s fees incurred in
1328 preparing for and attending any scheduled mediation.
1329 (l) The party who files a complaint for a trial de novo
1330 shall be assessed the other party’s arbitration costs, court
1331 costs, and other reasonable costs, including attorney attorney’s
1332 fees, investigation expenses, and expenses for expert or other
1333 testimony or evidence incurred after the arbitration hearing if
1334 the judgment upon the trial de novo is not more favorable than
1335 the arbitration decision. If the judgment is more favorable, the
1336 party who filed a complaint for trial de novo shall be awarded
1337 reasonable court costs and attorney attorney’s fees.
1338 (m) Any party to an arbitration proceeding may enforce an
1339 arbitration award by filing a petition in a court of competent
1340 jurisdiction in which the condominium is located. A petition may
1341 not be granted unless the time for appeal by the filing of a
1342 complaint for trial de novo has expired. If a complaint for a
1343 trial de novo has been filed, a petition may not be granted with
1344 respect to an arbitration award that has been stayed. If the
1345 petition for enforcement is granted, the petitioner shall
1346 recover reasonable attorney attorney’s fees and costs incurred
1347 in enforcing the arbitration award. A mediation settlement may
1348 also be enforced through the county or circuit court, as
1349 applicable, and any costs and fees incurred in the enforcement
1350 of a settlement agreement reached at mediation must be awarded
1351 to the prevailing party in any enforcement action.
1352 Section 27. Section 718.501, Florida Statutes, is amended
1353 to read:
1354 718.501 Authority, responsibility, and duties of Division
1355 of Florida Condominiums, Homeowners’ Associations, Timeshares,
1356 and Mobile Homes.—
1357 (1) The division may enforce and ensure compliance with the
1358 provisions of this chapter and rules relating to the
1359 development, construction, sale, lease, ownership, operation,
1360 and management of residential condominium units. In performing
1361 its duties, the division has complete jurisdiction to
1362 investigate complaints and enforce compliance with respect to
1363 associations that are still under developer control or the
1364 control of a bulk assignee or bulk buyer pursuant to part VII of
1365 this chapter and complaints against developers, bulk assignees,
1366 or bulk buyers involving improper turnover or failure to
1367 turnover, pursuant to s. 718.301. However, after turnover has
1368 occurred, the division has jurisdiction to investigate
1369 complaints related only to financial issues, elections, and unit
1370 owner access to association records pursuant to s. 718.111(12).
1371 (a)1. The division may make necessary public or private
1372 investigations within or outside this state to determine whether
1373 any person has violated this chapter or any rule or order
1374 hereunder, to aid in the enforcement of this chapter, or to aid
1375 in the adoption of rules or forms.
1376 2. The division may submit any official written report,
1377 worksheet, or other related paper, or a duly certified copy
1378 thereof, compiled, prepared, drafted, or otherwise made by and
1379 duly authenticated by a financial examiner or analyst to be
1380 admitted as competent evidence in any hearing in which the
1381 financial examiner or analyst is available for cross-examination
1382 and attests under oath that such documents were prepared as a
1383 result of an examination or inspection conducted pursuant to
1384 this chapter.
1385 (b) The division may require or permit any person to file a
1386 statement in writing, under oath or otherwise, as the division
1387 determines, as to the facts and circumstances concerning a
1388 matter to be investigated.
1389 (c) For the purpose of any investigation under this
1390 chapter, the division director or any officer or employee
1391 designated by the division director may administer oaths or
1392 affirmations, subpoena witnesses and compel their attendance,
1393 take evidence, and require the production of any matter which is
1394 relevant to the investigation, including the existence,
1395 description, nature, custody, condition, and location of any
1396 books, documents, or other tangible things and the identity and
1397 location of persons having knowledge of relevant facts or any
1398 other matter reasonably calculated to lead to the discovery of
1399 material evidence. Upon the failure by a person to obey a
1400 subpoena or to answer questions propounded by the investigating
1401 officer and upon reasonable notice to all affected persons, the
1402 division may apply to the circuit court for an order compelling
1403 compliance.
1404 (d) Notwithstanding any remedies available to unit owners
1405 and associations, if the division has reasonable cause to
1406 believe that a violation of any provision of this chapter or
1407 related rule has occurred, the division may institute
1408 enforcement proceedings in its own name against any developer,
1409 bulk assignee, bulk buyer, association, officer, or member of
1410 the board of administration, or its assignees or agents, as
1411 follows:
1412 1. The division may permit a person whose conduct or
1413 actions may be under investigation to waive formal proceedings
1414 and enter into a consent proceeding whereby orders, rules, or
1415 letters of censure or warning, whether formal or informal, may
1416 be entered against the person.
1417 2. The division may issue an order requiring the developer,
1418 bulk assignee, bulk buyer, association, developer-designated
1419 officer, or developer-designated member of the board of
1420 administration, developer-designated assignees or agents, bulk
1421 assignee-designated assignees or agents, bulk buyer-designated
1422 assignees or agents, community association manager, or community
1423 association management firm to cease and desist from the
1424 unlawful practice and take such affirmative action as in the
1425 judgment of the division carry out the purposes of this chapter.
1426 If the division finds that a developer, bulk assignee, bulk
1427 buyer, association, officer, or member of the board of
1428 administration, or its assignees or agents, is violating or is
1429 about to violate any provision of this chapter, any rule adopted
1430 or order issued by the division, or any written agreement
1431 entered into with the division, and presents an immediate danger
1432 to the public requiring an immediate final order, it may issue
1433 an emergency cease and desist order reciting with particularity
1434 the facts underlying such findings. The emergency cease and
1435 desist order is effective for 90 days. If the division begins
1436 nonemergency cease and desist proceedings, the emergency cease
1437 and desist order remains effective until the conclusion of the
1438 proceedings under ss. 120.569 and 120.57.
1439 3. If a developer, bulk assignee, or bulk buyer, fails to
1440 pay any restitution determined by the division to be owed, plus
1441 any accrued interest at the highest rate permitted by law,
1442 within 30 days after expiration of any appellate time period of
1443 a final order requiring payment of restitution or the conclusion
1444 of any appeal thereof, whichever is later, the division must
1445 bring an action in circuit or county court on behalf of any
1446 association, class of unit owners, lessees, or purchasers for
1447 restitution, declaratory relief, injunctive relief, or any other
1448 available remedy. The division may also temporarily revoke its
1449 acceptance of the filing for the developer to which the
1450 restitution relates until payment of restitution is made.
1451 4. The division may petition the court for appointment of a
1452 receiver or conservator. If appointed, the receiver or
1453 conservator may take action to implement the court order to
1454 ensure the performance of the order and to remedy any breach
1455 thereof. In addition to all other means provided by law for the
1456 enforcement of an injunction or temporary restraining order, the
1457 circuit court may impound or sequester the property of a party
1458 defendant, including books, papers, documents, and related
1459 records, and allow the examination and use of the property by
1460 the division and a court-appointed receiver or conservator.
1461 5. The division may apply to the circuit court for an order
1462 of restitution whereby the defendant in an action brought
1463 pursuant to subparagraph 4. is ordered to make restitution of
1464 those sums shown by the division to have been obtained by the
1465 defendant in violation of this chapter. At the option of the
1466 court, such restitution is payable to the conservator or
1467 receiver appointed pursuant to subparagraph 4. or directly to
1468 the persons whose funds or assets were obtained in violation of
1469 this chapter.
1470 6. The division may impose a civil penalty against a
1471 developer, bulk assignee, or bulk buyer, or association, or its
1472 assignee or agent, for any violation of this chapter or related
1473 rule. The division may impose a civil penalty individually
1474 against an officer or board member who willfully and knowingly
1475 violates a provision of this chapter, adopted rule, or a final
1476 order of the division; may order the removal of such individual
1477 as an officer or from the board of administration or as an
1478 officer of the association; and may prohibit such individual
1479 from serving as an officer or on the board of a community
1480 association for a period of time. The term “willfully and
1481 knowingly” means that the division informed the officer or board
1482 member that his or her action or intended action violates this
1483 chapter, a rule adopted under this chapter, or a final order of
1484 the division and that the officer or board member refused to
1485 comply with the requirements of this chapter, a rule adopted
1486 under this chapter, or a final order of the division. The
1487 division, before initiating formal agency action under chapter
1488 120, must afford the officer or board member an opportunity to
1489 voluntarily comply, and an officer or board member who complies
1490 within 10 days is not subject to a civil penalty. A penalty may
1491 be imposed on the basis of each day of continuing violation, but
1492 the penalty for any offense may not exceed $5,000. By January 1,
1493 1998, the division shall adopt, by rule, penalty guidelines
1494 applicable to possible violations or to categories of violations
1495 of this chapter or rules adopted by the division. The guidelines
1496 must specify a meaningful range of civil penalties for each such
1497 violation of the statute and rules and must be based upon the
1498 harm caused by the violation, the repetition of the violation,
1499 and upon such other factors deemed relevant by the division. For
1500 example, the division may consider whether the violations were
1501 committed by a developer, bulk assignee, or bulk buyer, or
1502 owner-controlled association, the size of the association, and
1503 other factors. The guidelines must designate the possible
1504 mitigating or aggravating circumstances that justify a departure
1505 from the range of penalties provided by the rules. It is the
1506 legislative intent that minor violations be distinguished from
1507 those which endanger the health, safety, or welfare of the
1508 condominium residents or other persons and that such guidelines
1509 provide reasonable and meaningful notice to the public of likely
1510 penalties that may be imposed for proscribed conduct. This
1511 subsection does not limit the ability of the division to
1512 informally dispose of administrative actions or complaints by
1513 stipulation, agreed settlement, or consent order. All amounts
1514 collected shall be deposited with the Chief Financial Officer to
1515 the credit of the Division of Florida Condominiums, Homeowners’
1516 Associations, Timeshares, and Mobile Homes Trust Fund. If a
1517 developer, bulk assignee, or bulk buyer fails to pay the civil
1518 penalty and the amount deemed to be owed to the association, the
1519 division shall issue an order directing that such developer,
1520 bulk assignee, or bulk buyer cease and desist from further
1521 operation until such time as the civil penalty is paid or may
1522 pursue enforcement of the penalty in a court of competent
1523 jurisdiction. If an association fails to pay the civil penalty,
1524 the division shall pursue enforcement in a court of competent
1525 jurisdiction, and the order imposing the civil penalty or the
1526 cease and desist order is not effective until 20 days after the
1527 date of such order. Any action commenced by the division shall
1528 be brought in the county in which the division has its executive
1529 offices or in the county where the violation occurred.
1530 7. If a unit owner presents the division with proof that
1531 the unit owner has requested access to official records in
1532 writing by certified mail, and that after 10 days the unit owner
1533 again made the same request for access to official records in
1534 writing by certified mail, and that more than 10 days has
1535 elapsed since the second request and the association has still
1536 failed or refused to provide access to official records as
1537 required by this chapter, the division shall issue a subpoena
1538 requiring production of the requested records where the records
1539 are kept pursuant to s. 718.112.
1540 8. In addition to subparagraph 6., the division may seek
1541 the imposition of a civil penalty through the circuit court for
1542 any violation for which the division may issue a notice to show
1543 cause under paragraph (r). The civil penalty shall be at least
1544 $500 but no more than $5,000 for each violation. The court may
1545 also award to the prevailing party court costs and reasonable
1546 attorney attorney’s fees and, if the division prevails, may also
1547 award reasonable costs of investigation.
1548 (e) The division may prepare and disseminate a prospectus
1549 and other information to assist prospective owners, purchasers,
1550 lessees, and developers of residential condominiums in assessing
1551 the rights, privileges, and duties pertaining thereto.
1552 (f) The division may adopt rules to administer and enforce
1553 the provisions of this chapter.
1554 (g) The division shall establish procedures for providing
1555 notice to an association and the developer, bulk assignee, or
1556 bulk buyer during the period in which the developer, bulk
1557 assignee, or bulk buyer controls the association if the division
1558 is considering the issuance of a declaratory statement with
1559 respect to the declaration of condominium or any related
1560 document governing such condominium community.
1561 (h) The division shall furnish each association that pays
1562 the fees required by paragraph (2)(a) a copy of this chapter, as
1563 amended, and the rules adopted thereto on an annual basis.
1564 (i) The division shall annually provide each association
1565 with a summary of declaratory statements and formal legal
1566 opinions relating to the operations of condominiums which were
1567 rendered by the division during the previous year.
1568 (j) The division shall provide training and educational
1569 programs for condominium association board members and unit
1570 owners. The training may, in the division’s discretion, include
1571 web-based electronic media, and live training and seminars in
1572 various locations throughout the state. The division may review
1573 and approve education and training programs for board members
1574 and unit owners offered by providers and shall maintain a
1575 current list of approved programs and providers and make such
1576 list available to board members and unit owners in a reasonable
1577 and cost-effective manner.
1578 (k) The division shall maintain a toll-free telephone
1579 number accessible to condominium unit owners.
1580 (l) The division shall develop a program to certify both
1581 volunteer and paid mediators to provide mediation of condominium
1582 disputes. The division shall provide, upon request, a list of
1583 such mediators to any association, unit owner, or other
1584 participant in arbitration proceedings under s. 718.1255
1585 requesting a copy of the list. The division shall include on the
1586 list of volunteer mediators only the names of persons who have
1587 received at least 20 hours of training in mediation techniques
1588 or who have mediated at least 20 disputes. In order to become
1589 initially certified by the division, paid mediators must be
1590 certified by the Supreme Court to mediate court cases in county
1591 or circuit courts. However, the division may adopt, by rule,
1592 additional factors for the certification of paid mediators,
1593 which must be related to experience, education, or background.
1594 Any person initially certified as a paid mediator by the
1595 division must, in order to continue to be certified, comply with
1596 the factors or requirements adopted by rule.
1597 (m) If a complaint is made, the division must conduct its
1598 inquiry with due regard for the interests of the affected
1599 parties. Within 30 days after receipt of a complaint, the
1600 division shall acknowledge the complaint in writing and notify
1601 the complainant whether the complaint is within the jurisdiction
1602 of the division and whether additional information is needed by
1603 the division from the complainant. The division shall conduct
1604 its investigation and, within 90 days after receipt of the
1605 original complaint or of timely requested additional
1606 information, take action upon the complaint. However, the
1607 failure to complete the investigation within 90 days does not
1608 prevent the division from continuing the investigation,
1609 accepting or considering evidence obtained or received after 90
1610 days, or taking administrative action if reasonable cause exists
1611 to believe that a violation of this chapter or a rule has
1612 occurred. If an investigation is not completed within the time
1613 limits established in this paragraph, the division shall, on a
1614 monthly basis, notify the complainant in writing of the status
1615 of the investigation. When reporting its action to the
1616 complainant, the division shall inform the complainant of any
1617 right to a hearing pursuant to ss. 120.569 and 120.57.
1618 (n) Condominium association directors, officers, and
1619 employees; condominium developers; bulk assignees, bulk buyers,
1620 and community association managers; and community association
1621 management firms have an ongoing duty to reasonably cooperate
1622 with the division in any investigation pursuant to this section.
1623 The division shall refer to local law enforcement authorities
1624 any person whom the division believes has altered, destroyed,
1625 concealed, or removed any record, document, or thing required to
1626 be kept or maintained by this chapter with the purpose to impair
1627 its verity or availability in the department’s investigation.
1628 (o) The division may:
1629 1. Contract with agencies in this state or other
1630 jurisdictions to perform investigative functions; or
1631 2. Accept grants-in-aid from any source.
1632 (p) The division shall cooperate with similar agencies in
1633 other jurisdictions to establish uniform filing procedures and
1634 forms, public offering statements, advertising standards, and
1635 rules and common administrative practices.
1636 (q) The division shall consider notice to a developer, bulk
1637 assignee, or bulk buyer to be complete when it is delivered to
1638 the address of the developer, bulk assignee, or bulk buyer
1639 currently on file with the division.
1640 (r) In addition to its enforcement authority, the division
1641 may issue a notice to show cause, which must provide for a
1642 hearing, upon written request, in accordance with chapter 120.
1643 (s) The division shall submit to the Governor, the
1644 President of the Senate, the Speaker of the House of
1645 Representatives, and the chairs of the legislative
1646 appropriations committees an annual report that includes, but
1647 need not be limited to, the number of training programs provided
1648 for condominium association board members and unit owners, the
1649 number of complaints received by type, the number and percent of
1650 complaints acknowledged in writing within 30 days and the number
1651 and percent of investigations acted upon within 90 days in
1652 accordance with paragraph (m), and the number of investigations
1653 exceeding the 90-day requirement. The annual report must also
1654 include an evaluation of the division’s core business processes
1655 and make recommendations for improvements, including statutory
1656 changes. The report shall be submitted by September 30 following
1657 the end of the fiscal year.
1658 (2)(a) Each condominium association which operates more
1659 than two units shall pay to the division an annual fee in the
1660 amount of $4 for each residential unit in condominiums operated
1661 by the association. If the fee is not paid by March 1, the
1662 association shall be assessed a penalty of 10 percent of the
1663 amount due, and the association will not have standing to
1664 maintain or defend any action in the courts of this state until
1665 the amount due, plus any penalty, is paid.
1666 (b) All fees shall be deposited in the Division of Florida
1667 Condominiums, Homeowners’ Associations, Timeshares, and Mobile
1668 Homes Trust Fund as provided by law.
1669 Section 28. Subsection (1) of section 718.5011, Florida
1670 Statutes, is amended to read:
1671 718.5011 Ombudsman; appointment; administration.—
1672 (1) There is created an Office of the Condominium
1673 Ombudsman, to be located for administrative purposes within the
1674 Division of Florida Condominiums, Homeowners’ Associations,
1675 Timeshares, and Mobile Homes. The functions of the office shall
1676 be funded by the Division of Florida Condominiums, Homeowners’
1677 Associations, Timeshares, and Mobile Homes Trust Fund. The
1678 ombudsman shall be a bureau chief of the division, and the
1679 office shall be set within the division in the same manner as
1680 any other bureau is staffed and funded.
1681 Section 29. Paragraph (a) of subsection (2) of section
1682 718.502, Florida Statutes, is amended to read:
1683 718.502 Filing prior to sale or lease.—
1684 (2)(a) Before prior to filing as required by subsection
1685 (1), and before prior to acquiring an ownership, leasehold, or
1686 contractual interest in the land upon which the condominium is
1687 to be developed, a developer may shall not offer a contract for
1688 purchase of a unit or lease of a unit for more than 5 years.
1689 However, the developer may accept deposits for reservations upon
1690 the approval of a fully executed escrow agreement and
1691 reservation agreement form properly filed with the Division of
1692 Florida Condominiums, Homeowners’ Associations, Timeshares, and
1693 Mobile Homes. Each filing of a proposed reservation program
1694 shall be accompanied by a filing fee of $250. Reservations may
1695 shall not be taken on a proposed condominium unless the
1696 developer has an ownership, leasehold, or contractual interest
1697 in the land upon which the condominium is to be developed. The
1698 division shall notify the developer within 20 days of receipt of
1699 the reservation filing of any deficiencies contained therein.
1700 Such notification does shall not preclude the determination of
1701 reservation filing deficiencies at a later date, nor shall it
1702 relieve the developer of any responsibility under the law. The
1703 escrow agreement and the reservation agreement form shall
1704 include a statement of the right of the prospective purchaser to
1705 an immediate unqualified refund of the reservation deposit
1706 moneys upon written request to the escrow agent by the
1707 prospective purchaser or the developer.
1708 Section 30. Paragraph (a) of subsection (2) of section
1709 718.503, Florida Statutes, is amended to read:
1710 718.503 Developer disclosure prior to sale; nondeveloper
1711 unit owner disclosure prior to sale; voidability.—
1712 (2) NONDEVELOPER DISCLOSURE.—
1713 (a) Each unit owner who is not a developer as defined by
1714 this chapter shall comply with the provisions of this subsection
1715 before prior to the sale of his or her unit. Each prospective
1716 purchaser who has entered into a contract for the purchase of a
1717 condominium unit is entitled, at the seller’s expense, to a
1718 current copy of the declaration of condominium, articles of
1719 incorporation of the association, bylaws and rules of the
1720 association, financial information required by s. 718.111, and
1721 the document entitled “Frequently Asked Questions and Answers”
1722 required by s. 718.504. On and after January 1, 2009, the
1723 prospective purchaser shall also be entitled to receive from the
1724 seller a copy of a governance form. Such form shall be provided
1725 by the division summarizing governance of condominium
1726 associations. In addition to such other information as the
1727 division considers helpful to a prospective purchaser in
1728 understanding association governance, the governance form shall
1729 address the following subjects:
1730 1. The role of the board in conducting the day-to-day
1731 affairs of the association on behalf of, and in the best
1732 interests of, the owners.
1733 2. The board’s responsibility to provide advance notice of
1734 board and membership meetings.
1735 3. The rights of owners to attend and speak at board and
1736 membership meetings.
1737 4. The responsibility of the board and of owners with
1738 respect to maintenance of the condominium property.
1739 5. The responsibility of the board and owners to abide by
1740 the condominium documents, this chapter, rules adopted by the
1741 division, and reasonable rules adopted by the board.
1742 6. Owners’ rights to inspect and copy association records
1743 and the limitations on such rights.
1744 7. Remedies available to owners with respect to actions by
1745 the board which may be abusive or beyond the board’s power and
1746 authority.
1747 8. The right of the board to hire a property management
1748 firm, subject to its own primary responsibility for such
1749 management.
1750 9. The responsibility of owners with regard to payment of
1751 regular or special assessments necessary for the operation of
1752 the property and the potential consequences of failure to pay
1753 such assessments.
1754 10. The voting rights of owners.
1755 11. Rights and obligations of the board in enforcement of
1756 rules in the condominium documents and rules adopted by the
1757 board.
1758
1759 The governance form shall also include the following statement
1760 in conspicuous type: “This publication is intended as an
1761 informal educational overview of condominium governance. In the
1762 event of a conflict, this the provisions of chapter 718, Florida
1763 Statutes, rules adopted by the Division of Florida Condominiums,
1764 Homeowners’ Associations, Timeshares, and Mobile Homes of the
1765 Department of Business and Professional Regulation, the
1766 provisions of the condominium documents, and reasonable rules
1767 adopted by the condominium association’s board of administration
1768 prevail over the contents of this publication.”
1769 Section 31. Section 718.504, Florida Statutes, is amended
1770 to read:
1771 718.504 Prospectus or offering circular.—Every developer of
1772 a residential condominium which contains more than 20
1773 residential units, or which is part of a group of residential
1774 condominiums which will be served by property to be used in
1775 common by unit owners of more than 20 residential units, shall
1776 prepare a prospectus or offering circular and file it with the
1777 Division of Florida Condominiums, Homeowners’ Associations,
1778 Timeshares, and Mobile Homes before prior to entering into an
1779 enforceable contract of purchase and sale of any unit or lease
1780 of a unit for more than 5 years and shall furnish a copy of the
1781 prospectus or offering circular to each buyer. In addition to
1782 the prospectus or offering circular, each buyer shall be
1783 furnished a separate page entitled “Frequently Asked Questions
1784 and Answers,” which shall be in accordance with a format
1785 approved by the division and a copy of the financial information
1786 required by s. 718.111. This page shall, in readable language,
1787 inform prospective purchasers regarding their voting rights and
1788 unit use restrictions, including restrictions on the leasing of
1789 a unit; shall indicate whether and in what amount the unit
1790 owners or the association is obligated to pay rent or land use
1791 fees for recreational or other commonly used facilities; shall
1792 contain a statement identifying that amount of assessment which,
1793 pursuant to the budget, would be levied upon each unit type,
1794 exclusive of any special assessments, and which shall further
1795 identify the basis upon which assessments are levied, whether
1796 monthly, quarterly, or otherwise; shall state and identify any
1797 court cases in which the association is currently a party of
1798 record in which the association may face liability in excess of
1799 $100,000; and which shall further state whether membership in a
1800 recreational facilities association is mandatory, and if so,
1801 shall identify the fees currently charged per unit type. The
1802 division shall by rule require such other disclosure as in its
1803 judgment will assist prospective purchasers. The prospectus or
1804 offering circular may include more than one condominium,
1805 although not all such units are being offered for sale as of the
1806 date of the prospectus or offering circular. The prospectus or
1807 offering circular must contain the following information:
1808 (1) The front cover or the first page must contain only:
1809 (a) The name of the condominium.
1810 (b) The following statements in conspicuous type:
1811 1. THIS PROSPECTUS (OFFERING CIRCULAR) CONTAINS IMPORTANT
1812 MATTERS TO BE CONSIDERED IN ACQUIRING A CONDOMINIUM UNIT.
1813 2. THE STATEMENTS CONTAINED HEREIN ARE ONLY SUMMARY IN
1814 NATURE. A PROSPECTIVE PURCHASER SHOULD REFER TO ALL REFERENCES,
1815 ALL EXHIBITS HERETO, THE CONTRACT DOCUMENTS, AND SALES
1816 MATERIALS.
1817 3. ORAL REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY
1818 STATING THE REPRESENTATIONS OF THE DEVELOPER. REFER TO THIS
1819 PROSPECTUS (OFFERING CIRCULAR) AND ITS EXHIBITS FOR CORRECT
1820 REPRESENTATIONS.
1821 (2) Summary: The next page must contain all statements
1822 required to be in conspicuous type in the prospectus or offering
1823 circular.
1824 (3) A separate index of the contents and exhibits of the
1825 prospectus.
1826 (4) Beginning on the first page of the text (not including
1827 the summary and index), a description of the condominium,
1828 including, but not limited to, the following information:
1829 (a) Its name and location.
1830 (b) A description of the condominium property, including,
1831 without limitation:
1832 1. The number of buildings, the number of units in each
1833 building, the number of bathrooms and bedrooms in each unit, and
1834 the total number of units, if the condominium is not a phase
1835 condominium, or the maximum number of buildings that may be
1836 contained within the condominium, the minimum and maximum
1837 numbers of units in each building, the minimum and maximum
1838 numbers of bathrooms and bedrooms that may be contained in each
1839 unit, and the maximum number of units that may be contained
1840 within the condominium, if the condominium is a phase
1841 condominium.
1842 2. The page in the condominium documents where a copy of
1843 the plot plan and survey of the condominium is located.
1844 3. The estimated latest date of completion of constructing,
1845 finishing, and equipping. In lieu of a date, the description
1846 shall include a statement that the estimated date of completion
1847 of the condominium is in the purchase agreement and a reference
1848 to the article or paragraph containing that information.
1849 (c) The maximum number of units that will use facilities in
1850 common with the condominium. If the maximum number of units will
1851 vary, a description of the basis for variation and the minimum
1852 amount of dollars per unit to be spent for additional
1853 recreational facilities or enlargement of such facilities. If
1854 the addition or enlargement of facilities will result in a
1855 material increase of a unit owner’s maintenance expense or
1856 rental expense, if any, the maximum increase and limitations
1857 thereon shall be stated.
1858 (5)(a) A statement in conspicuous type describing whether
1859 the condominium is created and being sold as fee simple
1860 interests or as leasehold interests. If the condominium is
1861 created or being sold on a leasehold, the location of the lease
1862 in the disclosure materials shall be stated.
1863 (b) If timeshare estates are or may be created with respect
1864 to any unit in the condominium, a statement in conspicuous type
1865 stating that timeshare estates are created and being sold in
1866 units in the condominium.
1867 (6) A description of the recreational and other commonly
1868 used facilities that will be used only by unit owners of the
1869 condominium, including, but not limited to, the following:
1870 (a) Each room and its intended purposes, location,
1871 approximate floor area, and capacity in numbers of people.
1872 (b) Each swimming pool, as to its general location,
1873 approximate size and depths, approximate deck size and capacity,
1874 and whether heated.
1875 (c) Additional facilities, as to the number of each
1876 facility, its approximate location, approximate size, and
1877 approximate capacity.
1878 (d) A general description of the items of personal property
1879 and the approximate number of each item of personal property
1880 that the developer is committing to furnish for each room or
1881 other facility or, in the alternative, a representation as to
1882 the minimum amount of expenditure that will be made to purchase
1883 the personal property for the facility.
1884 (e) The estimated date when each room or other facility
1885 will be available for use by the unit owners.
1886 (f)1. An identification of each room or other facility to
1887 be used by unit owners that will not be owned by the unit owners
1888 or the association;
1889 2. A reference to the location in the disclosure materials
1890 of the lease or other agreements providing for the use of those
1891 facilities; and
1892 3. A description of the terms of the lease or other
1893 agreements, including the length of the term; the rent payable,
1894 directly or indirectly, by each unit owner, and the total rent
1895 payable to the lessor, stated in monthly and annual amounts for
1896 the entire term of the lease; and a description of any option to
1897 purchase the property leased under any such lease, including the
1898 time the option may be exercised, the purchase price or how it
1899 is to be determined, the manner of payment, and whether the
1900 option may be exercised for a unit owner’s share or only as to
1901 the entire leased property.
1902 (g) A statement as to whether the developer may provide
1903 additional facilities not described above; their general
1904 locations and types; improvements or changes that may be made;
1905 the approximate dollar amount to be expended; and the maximum
1906 additional common expense or cost to the individual unit owners
1907 that may be charged during the first annual period of operation
1908 of the modified or added facilities.
1909
1910 Descriptions as to locations, areas, capacities, numbers,
1911 volumes, or sizes may be stated as approximations or minimums.
1912 (7) A description of the recreational and other facilities
1913 that will be used in common with other condominiums, community
1914 associations, or planned developments which require the payment
1915 of the maintenance and expenses of such facilities, directly or
1916 indirectly, by the unit owners. The description shall include,
1917 but not be limited to, the following:
1918 (a) Each building and facility committed to be built.
1919 (b) Facilities not committed to be built except under
1920 certain conditions, and a statement of those conditions or
1921 contingencies.
1922 (c) As to each facility committed to be built, or which
1923 will be committed to be built upon the happening of one of the
1924 conditions in paragraph (b), a statement of whether it will be
1925 owned by the unit owners having the use thereof or by an
1926 association or other entity which will be controlled by them, or
1927 others, and the location in the exhibits of the lease or other
1928 document providing for use of those facilities.
1929 (d) The year in which each facility will be available for
1930 use by the unit owners or, in the alternative, the maximum
1931 number of unit owners in the project at the time each of all of
1932 the facilities is committed to be completed.
1933 (e) A general description of the items of personal
1934 property, and the approximate number of each item of personal
1935 property, that the developer is committing to furnish for each
1936 room or other facility or, in the alternative, a representation
1937 as to the minimum amount of expenditure that will be made to
1938 purchase the personal property for the facility.
1939 (f) If there are leases, a description thereof, including
1940 the length of the term, the rent payable, and a description of
1941 any option to purchase.
1942
1943 Descriptions shall include location, areas, capacities, numbers,
1944 volumes, or sizes and may be stated as approximations or
1945 minimums.
1946 (8) Recreation lease or associated club membership:
1947 (a) If any recreational facilities or other facilities
1948 offered by the developer and available to, or to be used by,
1949 unit owners are to be leased or have club membership associated,
1950 the following statement in conspicuous type shall be included:
1951 THERE IS A RECREATIONAL FACILITIES LEASE ASSOCIATED WITH THIS
1952 CONDOMINIUM; or, THERE IS A CLUB MEMBERSHIP ASSOCIATED WITH THIS
1953 CONDOMINIUM. There shall be a reference to the location in the
1954 disclosure materials where the recreation lease or club
1955 membership is described in detail.
1956 (b) If it is mandatory that unit owners pay a fee, rent,
1957 dues, or other charges under a recreational facilities lease or
1958 club membership for the use of facilities, there shall be in
1959 conspicuous type the applicable statement:
1960 1. MEMBERSHIP IN THE RECREATIONAL FACILITIES CLUB IS
1961 MANDATORY FOR UNIT OWNERS; or
1962 2. UNIT OWNERS ARE REQUIRED, AS A CONDITION OF OWNERSHIP,
1963 TO BE LESSEES UNDER THE RECREATIONAL FACILITIES LEASE; or
1964 3. UNIT OWNERS ARE REQUIRED TO PAY THEIR SHARE OF THE COSTS
1965 AND EXPENSES OF MAINTENANCE, MANAGEMENT, UPKEEP, REPLACEMENT,
1966 RENT, AND FEES UNDER THE RECREATIONAL FACILITIES LEASE (OR THE
1967 OTHER INSTRUMENTS PROVIDING THE FACILITIES); or
1968 4. A similar statement of the nature of the organization or
1969 the manner in which the use rights are created, and that unit
1970 owners are required to pay.
1971
1972 Immediately following the applicable statement, the location in
1973 the disclosure materials where the development is described in
1974 detail shall be stated.
1975 (c) If the developer, or any other person other than the
1976 unit owners and other persons having use rights in the
1977 facilities, reserves, or is entitled to receive, any rent, fee,
1978 or other payment for the use of the facilities, then there shall
1979 be the following statement in conspicuous type: THE UNIT OWNERS
1980 OR THE ASSOCIATION(S) MUST PAY RENT OR LAND USE FEES FOR
1981 RECREATIONAL OR OTHER COMMONLY USED FACILITIES. Immediately
1982 following this statement, the location in the disclosure
1983 materials where the rent or land use fees are described in
1984 detail shall be stated.
1985 (d) If, in any recreation format, whether leasehold, club,
1986 or other, any person other than the association has the right to
1987 a lien on the units to secure the payment of assessments, rent,
1988 or other exactions, there shall appear a statement in
1989 conspicuous type in substantially the following form:
1990 1. THERE IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO
1991 SECURE THE PAYMENT OF RENT AND OTHER EXACTIONS UNDER THE
1992 RECREATION LEASE. THE UNIT OWNER’S FAILURE TO MAKE THESE
1993 PAYMENTS MAY RESULT IN FORECLOSURE OF THE LIEN; or
1994 2. THERE IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO
1995 SECURE THE PAYMENT OF ASSESSMENTS OR OTHER EXACTIONS COMING DUE
1996 FOR THE USE, MAINTENANCE, UPKEEP, OR REPAIR OF THE RECREATIONAL
1997 OR COMMONLY USED FACILITIES. THE UNIT OWNER’S FAILURE TO MAKE
1998 THESE PAYMENTS MAY RESULT IN FORECLOSURE OF THE LIEN.
1999
2000 Immediately following the applicable statement, the location in
2001 the disclosure materials where the lien or lien right is
2002 described in detail shall be stated.
2003 (9) If the developer or any other person has the right to
2004 increase or add to the recreational facilities at any time after
2005 the establishment of the condominium whose unit owners have use
2006 rights therein, without the consent of the unit owners or
2007 associations being required, there shall appear a statement in
2008 conspicuous type in substantially the following form:
2009 RECREATIONAL FACILITIES MAY BE EXPANDED OR ADDED WITHOUT CONSENT
2010 OF UNIT OWNERS OR THE ASSOCIATION(S). Immediately following this
2011 statement, the location in the disclosure materials where such
2012 reserved rights are described shall be stated.
2013 (10) A statement of whether the developer’s plan includes a
2014 program of leasing units rather than selling them, or leasing
2015 units and selling them subject to such leases. If so, there
2016 shall be a description of the plan, including the number and
2017 identification of the units and the provisions and term of the
2018 proposed leases, and a statement in boldfaced type that: THE
2019 UNITS MAY BE TRANSFERRED SUBJECT TO A LEASE.
2020 (11) The arrangements for management of the association and
2021 maintenance and operation of the condominium property and of
2022 other property that will serve the unit owners of the
2023 condominium property, and a description of the management
2024 contract and all other contracts for these purposes having a
2025 term in excess of 1 year, including the following:
2026 (a) The names of contracting parties.
2027 (b) The term of the contract.
2028 (c) The nature of the services included.
2029 (d) The compensation, stated on a monthly and annual basis,
2030 and provisions for increases in the compensation.
2031 (e) A reference to the volumes and pages of the condominium
2032 documents and of the exhibits containing copies of such
2033 contracts.
2034
2035 Copies of all described contracts shall be attached as exhibits.
2036 If there is a contract for the management of the condominium
2037 property, then a statement in conspicuous type in substantially
2038 the following form shall appear, identifying the proposed or
2039 existing contract manager: THERE IS (IS TO BE) A CONTRACT FOR
2040 THE MANAGEMENT OF THE CONDOMINIUM PROPERTY WITH (NAME OF THE
2041 CONTRACT MANAGER). Immediately following this statement, the
2042 location in the disclosure materials of the contract for
2043 management of the condominium property shall be stated.
2044 (12) If the developer or any other person or persons other
2045 than the unit owners has the right to retain control of the
2046 board of administration of the association for a period of time
2047 which can exceed 1 year after the closing of the sale of a
2048 majority of the units in that condominium to persons other than
2049 successors or alternate developers, then a statement in
2050 conspicuous type in substantially the following form shall be
2051 included: THE DEVELOPER (OR OTHER PERSON) HAS THE RIGHT TO
2052 RETAIN CONTROL OF THE ASSOCIATION AFTER A MAJORITY OF THE UNITS
2053 HAVE BEEN SOLD. Immediately following this statement, the
2054 location in the disclosure materials where this right to control
2055 is described in detail shall be stated.
2056 (13) If there are any restrictions upon the sale, transfer,
2057 conveyance, or leasing of a unit, then a statement in
2058 conspicuous type in substantially the following form shall be
2059 included: THE SALE, LEASE, OR TRANSFER OF UNITS IS RESTRICTED OR
2060 CONTROLLED. Immediately following this statement, the location
2061 in the disclosure materials where the restriction, limitation,
2062 or control on the sale, lease, or transfer of units is described
2063 in detail shall be stated.
2064 (14) If the condominium is part of a phase project, the
2065 following information shall be stated:
2066 (a) A statement in conspicuous type in substantially the
2067 following form: THIS IS A PHASE CONDOMINIUM. ADDITIONAL LAND AND
2068 UNITS MAY BE ADDED TO THIS CONDOMINIUM. Immediately following
2069 this statement, the location in the disclosure materials where
2070 the phasing is described shall be stated.
2071 (b) A summary of the provisions of the declaration which
2072 provide for the phasing.
2073 (c) A statement as to whether or not residential buildings
2074 and units which are added to the condominium may be
2075 substantially different from the residential buildings and units
2076 originally in the condominium. If the added residential
2077 buildings and units may be substantially different, there shall
2078 be a general description of the extent to which such added
2079 residential buildings and units may differ, and a statement in
2080 conspicuous type in substantially the following form shall be
2081 included: BUILDINGS AND UNITS WHICH ARE ADDED TO THE CONDOMINIUM
2082 MAY BE SUBSTANTIALLY DIFFERENT FROM THE OTHER BUILDINGS AND
2083 UNITS IN THE CONDOMINIUM. Immediately following this statement,
2084 the location in the disclosure materials where the extent to
2085 which added residential buildings and units may substantially
2086 differ is described shall be stated.
2087 (d) A statement of the maximum number of buildings
2088 containing units, the maximum and minimum numbers of units in
2089 each building, the maximum number of units, and the minimum and
2090 maximum square footage of the units that may be contained within
2091 each parcel of land which may be added to the condominium.
2092 (15) If a condominium created on or after July 1, 2000, is
2093 or may become part of a multicondominium, the following
2094 information must be provided:
2095 (a) A statement in conspicuous type in substantially the
2096 following form: THIS CONDOMINIUM IS (MAY BE) PART OF A
2097 MULTICONDOMINIUM DEVELOPMENT IN WHICH OTHER CONDOMINIUMS WILL
2098 (MAY) BE OPERATED BY THE SAME ASSOCIATION. Immediately following
2099 this statement, the location in the prospectus or offering
2100 circular and its exhibits where the multicondominium aspects of
2101 the offering are described must be stated.
2102 (b) A summary of the provisions in the declaration,
2103 articles of incorporation, and bylaws which establish and
2104 provide for the operation of the multicondominium, including a
2105 statement as to whether unit owners in the condominium will have
2106 the right to use recreational or other facilities located or
2107 planned to be located in other condominiums operated by the same
2108 association, and the manner of sharing the common expenses
2109 related to such facilities.
2110 (c) A statement of the minimum and maximum number of
2111 condominiums, and the minimum and maximum number of units in
2112 each of those condominiums, which will or may be operated by the
2113 association, and the latest date by which the exact number will
2114 be finally determined.
2115 (d) A statement as to whether any of the condominiums in
2116 the multicondominium may include units intended to be used for
2117 nonresidential purposes and the purpose or purposes permitted
2118 for such use.
2119 (e) A general description of the location and approximate
2120 acreage of any land on which any additional condominiums to be
2121 operated by the association may be located.
2122 (16) If the condominium is created by conversion of
2123 existing improvements, the following information shall be
2124 stated:
2125 (a) The information required by s. 718.616.
2126 (b) A caveat that there are no express warranties unless
2127 they are stated in writing by the developer.
2128 (17) A summary of the restrictions, if any, to be imposed
2129 on units concerning the use of any of the condominium property,
2130 including statements as to whether there are restrictions upon
2131 children and pets, and reference to the volumes and pages of the
2132 condominium documents where such restrictions are found, or if
2133 such restrictions are contained elsewhere, then a copy of the
2134 documents containing the restrictions shall be attached as an
2135 exhibit.
2136 (18) If there is any land that is offered by the developer
2137 for use by the unit owners and that is neither owned by them nor
2138 leased to them, the association, or any entity controlled by
2139 unit owners and other persons having the use rights to such
2140 land, a statement shall be made as to how such land will serve
2141 the condominium. If any part of such land will serve the
2142 condominium, the statement shall describe the land and the
2143 nature and term of service, and the declaration or other
2144 instrument creating such servitude shall be included as an
2145 exhibit.
2146 (19) The manner in which utility and other services,
2147 including, but not limited to, sewage and waste disposal, water
2148 supply, and storm drainage, will be provided and the person or
2149 entity furnishing them.
2150 (20) An explanation of the manner in which the
2151 apportionment of common expenses and ownership of the common
2152 elements has been determined.
2153 (21) An estimated operating budget for the condominium and
2154 the association, and a schedule of the unit owner’s expenses
2155 shall be attached as an exhibit and shall contain the following
2156 information:
2157 (a) The estimated monthly and annual expenses of the
2158 condominium and the association that are collected from unit
2159 owners by assessments.
2160 (b) The estimated monthly and annual expenses of each unit
2161 owner for a unit, other than common expenses paid by all unit
2162 owners, payable by the unit owner to persons or entities other
2163 than the association, as well as to the association, including
2164 fees assessed pursuant to s. 718.113(1) for maintenance of
2165 limited common elements where such costs are shared only by
2166 those entitled to use the limited common element, and the total
2167 estimated monthly and annual expense. There may be excluded from
2168 this estimate expenses which are not provided for or
2169 contemplated by the condominium documents, including, but not
2170 limited to, the costs of private telephone; maintenance of the
2171 interior of condominium units, which is not the obligation of
2172 the association; maid or janitorial services privately
2173 contracted for by the unit owners; utility bills billed directly
2174 to each unit owner for utility services to his or her unit;
2175 insurance premiums other than those incurred for policies
2176 obtained by the condominium; and similar personal expenses of
2177 the unit owner. A unit owner’s estimated payments for
2178 assessments shall also be stated in the estimated amounts for
2179 the times when they will be due.
2180 (c) The estimated items of expenses of the condominium and
2181 the association, except as excluded under paragraph (b),
2182 including, but not limited to, the following items, which shall
2183 be stated as an association expense collectible by assessments
2184 or as unit owners’ expenses payable to persons other than the
2185 association:
2186 1. Expenses for the association and condominium:
2187 a. Administration of the association.
2188 b. Management fees.
2189 c. Maintenance.
2190 d. Rent for recreational and other commonly used
2191 facilities.
2192 e. Taxes upon association property.
2193 f. Taxes upon leased areas.
2194 g. Insurance.
2195 h. Security provisions.
2196 i. Other expenses.
2197 j. Operating capital.
2198 k. Reserves.
2199 l. Fees payable to the division.
2200 2. Expenses for a unit owner:
2201 a. Rent for the unit, if subject to a lease.
2202 b. Rent payable by the unit owner directly to the lessor or
2203 agent under any recreational lease or lease for the use of
2204 commonly used facilities, which use and payment is a mandatory
2205 condition of ownership and is not included in the common expense
2206 or assessments for common maintenance paid by the unit owners to
2207 the association.
2208 (d) The following statement in conspicuous type: THE BUDGET
2209 CONTAINED IN THIS OFFERING CIRCULAR HAS BEEN PREPARED IN
2210 ACCORDANCE WITH THE CONDOMINIUM ACT AND IS A GOOD FAITH ESTIMATE
2211 ONLY AND REPRESENTS AN APPROXIMATION OF FUTURE EXPENSES BASED ON
2212 FACTS AND CIRCUMSTANCES EXISTING AT THE TIME OF ITS PREPARATION.
2213 ACTUAL COSTS OF SUCH ITEMS MAY EXCEED THE ESTIMATED COSTS. SUCH
2214 CHANGES IN COST DO NOT CONSTITUTE MATERIAL ADVERSE CHANGES IN
2215 THE OFFERING.
2216 (e) Each budget for an association prepared by a developer
2217 consistent with this subsection shall be prepared in good faith
2218 and shall reflect accurate estimated amounts for the required
2219 items in paragraph (c) at the time of the filing of the offering
2220 circular with the division, and subsequent increased amounts of
2221 any item included in the association’s estimated budget that are
2222 beyond the control of the developer may shall not be considered
2223 an amendment that would give rise to rescission rights set forth
2224 in s. 718.503(1)(a) or (b), nor shall such increases modify,
2225 void, or otherwise affect any guarantee of the developer
2226 contained in the offering circular or any purchase contract. It
2227 is the intent of this paragraph to clarify existing law.
2228 (f) The estimated amounts shall be stated for a period of
2229 at least 12 months and may distinguish between the period before
2230 prior to the time unit owners other than the developer elect a
2231 majority of the board of administration and the period after
2232 that date.
2233 (22) A schedule of estimated closing expenses to be paid by
2234 a buyer or lessee of a unit and a statement of whether title
2235 opinion or title insurance policy is available to the buyer and,
2236 if so, at whose expense.
2237 (23) The identity of the developer and the chief operating
2238 officer or principal directing the creation and sale of the
2239 condominium and a statement of its and his or her experience in
2240 this field.
2241 (24) Copies of the following, to the extent they are
2242 applicable, shall be included as exhibits:
2243 (a) The declaration of condominium, or the proposed
2244 declaration if the declaration has not been recorded.
2245 (b) The articles of incorporation creating the association.
2246 (c) The bylaws of the association.
2247 (d) The ground lease or other underlying lease of the
2248 condominium.
2249 (e) The management agreement and all maintenance and other
2250 contracts for management of the association and operation of the
2251 condominium and facilities used by the unit owners having a
2252 service term in excess of 1 year.
2253 (f) The estimated operating budget for the condominium and
2254 the required schedule of unit owners’ expenses.
2255 (g) A copy of the floor plan of the unit and the plot plan
2256 showing the location of the residential buildings and the
2257 recreation and other common areas.
2258 (h) The lease of recreational and other facilities that
2259 will be used only by unit owners of the subject condominium.
2260 (i) The lease of facilities used by owners and others.
2261 (j) The form of unit lease, if the offer is of a leasehold.
2262 (k) A declaration of servitude of properties serving the
2263 condominium but not owned by unit owners or leased to them or
2264 the association.
2265 (l) The statement of condition of the existing building or
2266 buildings, if the offering is of units in an operation being
2267 converted to condominium ownership.
2268 (m) The statement of inspection for termite damage and
2269 treatment of the existing improvements, if the condominium is a
2270 conversion.
2271 (n) The form of agreement for sale or lease of units.
2272 (o) A copy of the agreement for escrow of payments made to
2273 the developer before prior to closing.
2274 (p) A copy of the documents containing any restrictions on
2275 use of the property required by subsection (17).
2276 (25) Any prospectus or offering circular complying, before
2277 prior to the effective date of this act, with the provisions of
2278 former ss. 711.69 and 711.802 may continue to be used without
2279 amendment or may be amended to comply with this chapter.
2280 (26) A brief narrative description of the location and
2281 effect of all existing and intended easements located or to be
2282 located on the condominium property other than those described
2283 in the declaration.
2284 (27) If the developer is required by state or local
2285 authorities to obtain acceptance or approval of any dock or
2286 marina facilities intended to serve the condominium, a copy of
2287 any such acceptance or approval acquired by the time of filing
2288 with the division under s. 718.502(1) or a statement that such
2289 acceptance or approval has not been acquired or received.
2290 (28) Evidence demonstrating that the developer has an
2291 ownership, leasehold, or contractual interest in the land upon
2292 which the condominium is to be developed.
2293 Section 32. Section 718.508, Florida Statutes, is amended
2294 to read:
2295 718.508 Regulation by Division of Hotels and Restaurants.
2296 In addition to the authority, regulation, or control exercised
2297 by the Division of Florida Condominiums, Homeowners’
2298 Associations, Timeshares, and Mobile Homes pursuant to this act
2299 with respect to condominiums, buildings included in a
2300 condominium property are subject to the authority, regulation,
2301 or control of the Division of Hotels and Restaurants of the
2302 Department of Business and Professional Regulation, to the
2303 extent provided in chapter 399.
2304 Section 33. Paragraph (a) of subsection (2) of section
2305 718.608, Florida Statutes, is amended to read:
2306 718.608 Notice of intended conversion; time of delivery;
2307 content.—
2308 (2)(a) Each notice of intended conversion shall be dated
2309 and in writing. The notice shall contain the following
2310 statement, with the phrases of the following statement which
2311 appear in upper case printed in conspicuous type:
2312
2313 These apartments are being converted to condominium by
2314 ...(name of developer)..., the developer.
2315 1. YOU MAY REMAIN AS A RESIDENT UNTIL THE EXPIRATION OF
2316 YOUR RENTAL AGREEMENT. FURTHER, YOU MAY EXTEND YOUR RENTAL
2317 AGREEMENT AS FOLLOWS:
2318 a. If you have continuously been a resident of these
2319 apartments during the last 180 days and your rental agreement
2320 expires during the next 270 days, you may extend your rental
2321 agreement for up to 270 days after the date of this notice.
2322 b. If you have not been a continuous resident of these
2323 apartments for the last 180 days and your rental agreement
2324 expires during the next 180 days, you may extend your rental
2325 agreement for up to 180 days after the date of this notice.
2326 c. IN ORDER FOR YOU TO EXTEND YOUR RENTAL AGREEMENT, YOU
2327 MUST GIVE THE DEVELOPER WRITTEN NOTICE WITHIN 45 DAYS AFTER THE
2328 DATE OF THIS NOTICE.
2329 2. IF YOUR RENTAL AGREEMENT EXPIRES IN THE NEXT 45 DAYS,
2330 you may extend your rental agreement for up to 45 days after the
2331 date of this notice while you decide whether to extend your
2332 rental agreement as explained above. To do so, you must notify
2333 the developer in writing. You will then have the full 45 days to
2334 decide whether to extend your rental agreement as explained
2335 above.
2336 3. During the extension of your rental agreement you will
2337 be charged the same rent that you are now paying.
2338 4. YOU MAY CANCEL YOUR RENTAL AGREEMENT AND ANY EXTENSION
2339 OF THE RENTAL AGREEMENT AS FOLLOWS:
2340 a. If your rental agreement began or was extended or
2341 renewed after May 1, 1980, and your rental agreement, including
2342 extensions and renewals, has an unexpired term of 180 days or
2343 less, you may cancel your rental agreement upon 30 days’ written
2344 notice and move. Also, upon 30 days’ written notice, you may
2345 cancel any extension of the rental agreement.
2346 b. If your rental agreement was not begun or was not
2347 extended or renewed after May 1, 1980, you may not cancel the
2348 rental agreement without the consent of the developer. If your
2349 rental agreement, including extensions and renewals, has an
2350 unexpired term of 180 days or less, you may, however, upon 30
2351 days’ written notice cancel any extension of the rental
2352 agreement.
2353 5. All notices must be given in writing and sent by mail,
2354 return receipt requested, or delivered in person to the
2355 developer at this address: ...(name and address of
2356 developer)....
2357 6. If you have continuously been a resident of these
2358 apartments during the last 180 days:
2359 a. You have the right to purchase your apartment and will
2360 have 45 days to decide whether to purchase. If you do not buy
2361 the unit at that price and the unit is later offered at a lower
2362 price, you will have the opportunity to buy the unit at the
2363 lower price. However, in all events your right to purchase the
2364 unit ends when the rental agreement or any extension of the
2365 rental agreement ends or when you waive this right in writing.
2366 b. Within 90 days you will be provided purchase information
2367 relating to your apartment, including the price of your unit and
2368 the condition of the building. If you do not receive this
2369 information within 90 days, your rental agreement and any
2370 extension will be extended 1 day for each day over 90 days until
2371 you are given the purchase information. If you do not want this
2372 rental agreement extension, you must notify the developer in
2373 writing.
2374 7. If you have any questions regarding this conversion or
2375 the Condominium Act, you may contact the developer or the state
2376 agency which regulates condominiums: The Division of Florida
2377 Condominiums, Homeowners’ Associations, Timeshares, and Mobile
2378 Homes, ...(Tallahassee address and telephone number of
2379 division)....
2380 Section 34. Subsection (17) of section 719.103, Florida
2381 Statutes, is amended to read:
2382 719.103 Definitions.—As used in this chapter:
2383 (17) “Division” means the Division of Florida Condominiums,
2384 Homeowners’ Associations, Timeshares, and Mobile Homes of the
2385 Department of Business and Professional Regulation.
2386 Section 35. Section 719.1255, Florida Statutes, is amended
2387 to read:
2388 719.1255 Alternative resolution of disputes.—The Division
2389 of Florida Condominiums, Homeowners’ Associations, Timeshares,
2390 and Mobile Homes of the Department of Business and Professional
2391 Regulation shall provide for alternative dispute resolution in
2392 accordance with s. 718.1255.
2393 Section 36. Section 719.501, Florida Statutes, is amended
2394 to read:
2395 719.501 Powers and duties of Division of Florida
2396 Condominiums, Homeowners’ Associations, Timeshares, and Mobile
2397 Homes.—
2398 (1) The Division of Florida Condominiums, Homeowners’
2399 Associations, Timeshares, and Mobile Homes of the Department of
2400 Business and Professional Regulation, referred to as the
2401 “division” in this part, in addition to other powers and duties
2402 prescribed by chapter 718, has the power to enforce and ensure
2403 compliance with this chapter and adopted rules relating to the
2404 development, construction, sale, lease, ownership, operation,
2405 and management of residential cooperative units. In performing
2406 its duties, the division shall have the following powers and
2407 duties:
2408 (a) The division may make necessary public or private
2409 investigations within or outside this state to determine whether
2410 any person has violated this chapter or any rule or order
2411 hereunder, to aid in the enforcement of this chapter, or to aid
2412 in the adoption of rules or forms hereunder.
2413 (b) The division may require or permit any person to file a
2414 statement in writing, under oath or otherwise, as the division
2415 determines, as to the facts and circumstances concerning a
2416 matter to be investigated.
2417 (c) For the purpose of any investigation under this
2418 chapter, the division director or any officer or employee
2419 designated by the division director may administer oaths or
2420 affirmations, subpoena witnesses and compel their attendance,
2421 take evidence, and require the production of any matter which is
2422 relevant to the investigation, including the existence,
2423 description, nature, custody, condition, and location of any
2424 books, documents, or other tangible things and the identity and
2425 location of persons having knowledge of relevant facts or any
2426 other matter reasonably calculated to lead to the discovery of
2427 material evidence. Upon failure by a person to obey a subpoena
2428 or to answer questions propounded by the investigating officer
2429 and upon reasonable notice to all persons affected thereby, the
2430 division may apply to the circuit court for an order compelling
2431 compliance.
2432 (d) Notwithstanding any remedies available to unit owners
2433 and associations, if the division has reasonable cause to
2434 believe that a violation of any provision of this chapter or
2435 related rule has occurred, the division may institute
2436 enforcement proceedings in its own name against a developer,
2437 association, officer, or member of the board, or its assignees
2438 or agents, as follows:
2439 1. The division may permit a person whose conduct or
2440 actions may be under investigation to waive formal proceedings
2441 and enter into a consent proceeding whereby orders, rules, or
2442 letters of censure or warning, whether formal or informal, may
2443 be entered against the person.
2444 2. The division may issue an order requiring the developer,
2445 association, officer, or member of the board, or its assignees
2446 or agents, to cease and desist from the unlawful practice and
2447 take such affirmative action as in the judgment of the division
2448 will carry out the purposes of this chapter. Such affirmative
2449 action may include, but is not limited to, an order requiring a
2450 developer to pay moneys determined to be owed to a condominium
2451 association.
2452 3. The division may bring an action in circuit court on
2453 behalf of a class of unit owners, lessees, or purchasers for
2454 declaratory relief, injunctive relief, or restitution.
2455 4. The division may impose a civil penalty against a
2456 developer or association, or its assignees or agents, for any
2457 violation of this chapter or related rule. The division may
2458 impose a civil penalty individually against any officer or board
2459 member who willfully and knowingly violates a provision of this
2460 chapter, a rule adopted pursuant to this chapter, or a final
2461 order of the division. The term “willfully and knowingly” means
2462 that the division informed the officer or board member that his
2463 or her action or intended action violates this chapter, a rule
2464 adopted under this chapter, or a final order of the division,
2465 and that the officer or board member refused to comply with the
2466 requirements of this chapter, a rule adopted under this chapter,
2467 or a final order of the division. The division, before prior to
2468 initiating formal agency action under chapter 120, shall afford
2469 the officer or board member an opportunity to voluntarily comply
2470 with this chapter, a rule adopted under this chapter, or a final
2471 order of the division. An officer or board member who complies
2472 within 10 days is not subject to a civil penalty. A penalty may
2473 be imposed on the basis of each day of continuing violation, but
2474 in no event shall the penalty for any offense exceed $5,000. By
2475 January 1, 1998, the division shall adopt, by rule, penalty
2476 guidelines applicable to possible violations or to categories of
2477 violations of this chapter or rules adopted by the division. The
2478 guidelines must specify a meaningful range of civil penalties
2479 for each such violation of the statute and rules and must be
2480 based upon the harm caused by the violation, the repetition of
2481 the violation, and upon such other factors deemed relevant by
2482 the division. For example, the division may consider whether the
2483 violations were committed by a developer or owner-controlled
2484 association, the size of the association, and other factors. The
2485 guidelines must designate the possible mitigating or aggravating
2486 circumstances that justify a departure from the range of
2487 penalties provided by the rules. It is the legislative intent
2488 that minor violations be distinguished from those which endanger
2489 the health, safety, or welfare of the cooperative residents or
2490 other persons and that such guidelines provide reasonable and
2491 meaningful notice to the public of likely penalties that may be
2492 imposed for proscribed conduct. This subsection does not limit
2493 the ability of the division to informally dispose of
2494 administrative actions or complaints by stipulation, agreed
2495 settlement, or consent order. All amounts collected shall be
2496 deposited with the Chief Financial Officer to the credit of the
2497 Division of Florida Condominiums, Homeowners’ Associations,
2498 Timeshares, and Mobile Homes Trust Fund. If a developer fails to
2499 pay the civil penalty, the division shall thereupon issue an
2500 order directing that the such developer cease and desist from
2501 further operation until such time as the civil penalty is paid
2502 or shall may pursue enforcement of the penalty in a court of
2503 competent jurisdiction. If an association fails to pay the civil
2504 penalty, the division shall thereupon pursue enforcement in a
2505 court of competent jurisdiction, and the order imposing the
2506 civil penalty or the cease and desist order does shall not
2507 become effective until 20 days after the date of such order. Any
2508 action commenced by the division shall be brought in the county
2509 in which the division has its executive offices or in the county
2510 where the violation occurred.
2511 (e) The division may prepare and disseminate a prospectus
2512 and other information to assist prospective owners, purchasers,
2513 lessees, and developers of residential cooperatives in assessing
2514 the rights, privileges, and duties pertaining thereto.
2515 (f) The division has authority to adopt rules pursuant to
2516 ss. 120.536(1) and 120.54 to implement and enforce the
2517 provisions of this chapter.
2518 (g) The division shall establish procedures for providing
2519 notice to an association when the division is considering the
2520 issuance of a declaratory statement with respect to the
2521 cooperative documents governing such cooperative community.
2522 (h) The division shall furnish each association which pays
2523 the fees required by paragraph (2)(a) a copy of this act,
2524 subsequent changes to this act on an annual basis, an amended
2525 version of this act as it becomes available from the Secretary
2526 of State’s office on a biennial basis, and the rules adopted
2527 thereto on an annual basis.
2528 (i) The division shall annually provide each association
2529 with a summary of declaratory statements and formal legal
2530 opinions relating to the operations of cooperatives which were
2531 rendered by the division during the previous year.
2532 (j) The division shall adopt uniform accounting principles,
2533 policies, and standards to be used by all associations in the
2534 preparation and presentation of all financial statements
2535 required by this chapter. The principles, policies, and
2536 standards shall take into consideration the size of the
2537 association and the total revenue collected by the association.
2538 (k) The division shall provide training and educational
2539 programs for cooperative association board members and unit
2540 owners. The training may, in the division’s discretion, include
2541 web-based electronic media, and live training and seminars in
2542 various locations throughout the state. The division may review
2543 and approve education and training programs for board members
2544 and unit owners offered by providers and shall maintain a
2545 current list of approved programs and providers and make such
2546 list available to board members and unit owners in a reasonable
2547 and cost-effective manner.
2548 (l) The division shall maintain a toll-free telephone
2549 number accessible to cooperative unit owners.
2550 (m) When a complaint is made to the division, the division
2551 shall conduct its inquiry with reasonable dispatch and with due
2552 regard to the interests of the affected parties. Within 30 days
2553 after receipt of a complaint, the division shall acknowledge the
2554 complaint in writing and notify the complainant whether the
2555 complaint is within the jurisdiction of the division and whether
2556 additional information is needed by the division from the
2557 complainant. The division shall conduct its investigation and
2558 shall, within 90 days after receipt of the original complaint or
2559 timely requested additional information, take action upon the
2560 complaint. However, the failure to complete the investigation
2561 within 90 days does not prevent the division from continuing the
2562 investigation, accepting or considering evidence obtained or
2563 received after 90 days, or taking administrative action if
2564 reasonable cause exists to believe that a violation of this
2565 chapter or a rule of the division has occurred. If an
2566 investigation is not completed within the time limits
2567 established in this paragraph, the division shall, on a monthly
2568 basis, notify the complainant in writing of the status of the
2569 investigation. When reporting its action to the complainant, the
2570 division shall inform the complainant of any right to a hearing
2571 pursuant to ss. 120.569 and 120.57.
2572 (n) The division shall develop a program to certify both
2573 volunteer and paid mediators to provide mediation of cooperative
2574 disputes. The division shall provide, upon request, a list of
2575 such mediators to any association, unit owner, or other
2576 participant in arbitration proceedings under s. 718.1255
2577 requesting a copy of the list. The division shall include on the
2578 list of voluntary mediators only persons who have received at
2579 least 20 hours of training in mediation techniques or have
2580 mediated at least 20 disputes. In order to become initially
2581 certified by the division, paid mediators must be certified by
2582 the Supreme Court to mediate court cases in county or circuit
2583 courts. However, the division may adopt, by rule, additional
2584 factors for the certification of paid mediators, which factors
2585 must be related to experience, education, or background. Any
2586 person initially certified as a paid mediator by the division
2587 must, in order to continue to be certified, comply with the
2588 factors or requirements imposed by rules adopted by the
2589 division.
2590 (2)(a) Each cooperative association shall pay to the
2591 division, on or before January 1 of each year, an annual fee in
2592 the amount of $4 for each residential unit in cooperatives
2593 operated by the association. If the fee is not paid by March 1,
2594 then the association shall be assessed a penalty of 10 percent
2595 of the amount due, and the association shall not have the
2596 standing to maintain or defend any action in the courts of this
2597 state until the amount due is paid.
2598 (b) All fees shall be deposited in the Division of Florida
2599 Condominiums, Homeowners’ Associations, Timeshares, and Mobile
2600 Homes Trust Fund as provided by law.
2601 Section 37. Paragraph (a) of subsection (2) of section
2602 719.502, Florida Statutes, is amended to read:
2603 719.502 Filing prior to sale or lease.—
2604 (2)(a) Before Prior to filing as required by subsection
2605 (1), and before prior to acquiring an ownership, leasehold, or
2606 contractual interest in the land upon which the cooperative is
2607 to be developed, a developer may shall not offer a contract for
2608 purchase or lease of a unit for more than 5 years. However, the
2609 developer may accept deposits for reservations upon the approval
2610 of a fully executed escrow agreement and reservation agreement
2611 form properly filed with the Division of Florida Condominiums,
2612 Homeowners’ Associations, Timeshares, and Mobile Homes. Each
2613 filing of a proposed reservation program shall be accompanied by
2614 a filing fee of $250. Reservations may shall not be taken on a
2615 proposed cooperative unless the developer has an ownership,
2616 leasehold, or contractual interest in the land upon which the
2617 cooperative is to be developed. The division shall notify the
2618 developer within 20 days of receipt of the reservation filing of
2619 any deficiencies contained therein. Such notification does shall
2620 not preclude the determination of reservation filing
2621 deficiencies at a later date, nor shall it relieve the developer
2622 of any responsibility under the law. The escrow agreement and
2623 the reservation agreement form shall include a statement of the
2624 right of the prospective purchaser to an immediate unqualified
2625 refund of the reservation deposit moneys upon written request to
2626 the escrow agent by the prospective purchaser or the developer.
2627 Section 38. Section 719.504, Florida Statutes, is amended
2628 to read:
2629 719.504 Prospectus or offering circular.—Every developer of
2630 a residential cooperative which contains more than 20
2631 residential units, or which is part of a group of residential
2632 cooperatives which will be served by property to be used in
2633 common by unit owners of more than 20 residential units, shall
2634 prepare a prospectus or offering circular and file it with the
2635 Division of Florida Condominiums, Homeowners’ Associations,
2636 Timeshares, and Mobile Homes before prior to entering into an
2637 enforceable contract of purchase and sale of any unit or lease
2638 of a unit for more than 5 years and shall furnish a copy of the
2639 prospectus or offering circular to each buyer. In addition to
2640 the prospectus or offering circular, each buyer shall be
2641 furnished a separate page entitled “Frequently Asked Questions
2642 and Answers,” which must be in accordance with a format approved
2643 by the division. This page must, in readable language: inform
2644 prospective purchasers regarding their voting rights and unit
2645 use restrictions, including restrictions on the leasing of a
2646 unit; indicate whether and in what amount the unit owners or the
2647 association is obligated to pay rent or land use fees for
2648 recreational or other commonly used facilities; contain a
2649 statement identifying that amount of assessment which, pursuant
2650 to the budget, would be levied upon each unit type, exclusive of
2651 any special assessments, and which identifies the basis upon
2652 which assessments are levied, whether monthly, quarterly, or
2653 otherwise; state and identify any court cases in which the
2654 association is currently a party of record in which the
2655 association may face liability in excess of $100,000; and state
2656 whether membership in a recreational facilities association is
2657 mandatory and, if so, identify the fees currently charged per
2658 unit type. The division shall by rule require such other
2659 disclosure as in its judgment will assist prospective
2660 purchasers. The prospectus or offering circular may include more
2661 than one cooperative, although not all such units are being
2662 offered for sale as of the date of the prospectus or offering
2663 circular. The prospectus or offering circular must contain the
2664 following information:
2665 (1) The front cover or the first page must contain only:
2666 (a) The name of the cooperative.
2667 (b) The following statements in conspicuous type:
2668 1. THIS PROSPECTUS (OFFERING CIRCULAR) CONTAINS IMPORTANT
2669 MATTERS TO BE CONSIDERED IN ACQUIRING A COOPERATIVE UNIT.
2670 2. THE STATEMENTS CONTAINED HEREIN ARE ONLY SUMMARY IN
2671 NATURE. A PROSPECTIVE PURCHASER SHOULD REFER TO ALL REFERENCES,
2672 ALL EXHIBITS HERETO, THE CONTRACT DOCUMENTS, AND SALES
2673 MATERIALS.
2674 3. ORAL REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY
2675 STATING THE REPRESENTATIONS OF THE DEVELOPER. REFER TO THIS
2676 PROSPECTUS (OFFERING CIRCULAR) AND ITS EXHIBITS FOR CORRECT
2677 REPRESENTATIONS.
2678 (2) Summary: The next page must contain all statements
2679 required to be in conspicuous type in the prospectus or offering
2680 circular.
2681 (3) A separate index of the contents and exhibits of the
2682 prospectus.
2683 (4) Beginning on the first page of the text (not including
2684 the summary and index), a description of the cooperative,
2685 including, but not limited to, the following information:
2686 (a) Its name and location.
2687 (b) A description of the cooperative property, including,
2688 without limitation:
2689 1. The number of buildings, the number of units in each
2690 building, the number of bathrooms and bedrooms in each unit, and
2691 the total number of units, if the cooperative is not a phase
2692 cooperative; or, if the cooperative is a phase cooperative, the
2693 maximum number of buildings that may be contained within the
2694 cooperative, the minimum and maximum number of units in each
2695 building, the minimum and maximum number of bathrooms and
2696 bedrooms that may be contained in each unit, and the maximum
2697 number of units that may be contained within the cooperative.
2698 2. The page in the cooperative documents where a copy of
2699 the survey and plot plan of the cooperative is located.
2700 3. The estimated latest date of completion of constructing,
2701 finishing, and equipping. In lieu of a date, a statement that
2702 the estimated date of completion of the cooperative is in the
2703 purchase agreement and a reference to the article or paragraph
2704 containing that information.
2705 (c) The maximum number of units that will use facilities in
2706 common with the cooperative. If the maximum number of units will
2707 vary, a description of the basis for variation and the minimum
2708 amount of dollars per unit to be spent for additional
2709 recreational facilities or enlargement of such facilities. If
2710 the addition or enlargement of facilities will result in a
2711 material increase of a unit owner’s maintenance expense or
2712 rental expense, if any, the maximum increase and limitations
2713 thereon shall be stated.
2714 (5)(a) A statement in conspicuous type describing whether
2715 the cooperative is created and being sold as fee simple
2716 interests or as leasehold interests. If the cooperative is
2717 created or being sold on a leasehold, the location of the lease
2718 in the disclosure materials shall be stated.
2719 (b) If timeshare estates are or may be created with respect
2720 to any unit in the cooperative, a statement in conspicuous type
2721 stating that timeshare estates are created and being sold in
2722 such specified units in the cooperative.
2723 (6) A description of the recreational and other common
2724 areas that will be used only by unit owners of the cooperative,
2725 including, but not limited to, the following:
2726 (a) Each room and its intended purposes, location,
2727 approximate floor area, and capacity in numbers of people.
2728 (b) Each swimming pool, as to its general location,
2729 approximate size and depths, approximate deck size and capacity,
2730 and whether heated.
2731 (c) Additional facilities, as to the number of each
2732 facility, its approximate location, approximate size, and
2733 approximate capacity.
2734 (d) A general description of the items of personal property
2735 and the approximate number of each item of personal property
2736 that the developer is committing to furnish for each room or
2737 other facility or, in the alternative, a representation as to
2738 the minimum amount of expenditure that will be made to purchase
2739 the personal property for the facility.
2740 (e) The estimated date when each room or other facility
2741 will be available for use by the unit owners.
2742 (f)1. An identification of each room or other facility to
2743 be used by unit owners that will not be owned by the unit owners
2744 or the association;
2745 2. A reference to the location in the disclosure materials
2746 of the lease or other agreements providing for the use of those
2747 facilities; and
2748 3. A description of the terms of the lease or other
2749 agreements, including the length of the term; the rent payable,
2750 directly or indirectly, by each unit owner, and the total rent
2751 payable to the lessor, stated in monthly and annual amounts for
2752 the entire term of the lease; and a description of any option to
2753 purchase the property leased under any such lease, including the
2754 time the option may be exercised, the purchase price or how it
2755 is to be determined, the manner of payment, and whether the
2756 option may be exercised for a unit owner’s share or only as to
2757 the entire leased property.
2758 (g) A statement as to whether the developer may provide
2759 additional facilities not described above, their general
2760 locations and types, improvements or changes that may be made,
2761 the approximate dollar amount to be expended, and the maximum
2762 additional common expense or cost to the individual unit owners
2763 that may be charged during the first annual period of operation
2764 of the modified or added facilities.
2765
2766 Descriptions as to locations, areas, capacities, numbers,
2767 volumes, or sizes may be stated as approximations or minimums.
2768 (7) A description of the recreational and other facilities
2769 that will be used in common with other cooperatives, community
2770 associations, or planned developments which require the payment
2771 of the maintenance and expenses of such facilities, directly or
2772 indirectly, by the unit owners. The description shall include,
2773 but not be limited to, the following:
2774 (a) Each building and facility committed to be built.
2775 (b) Facilities not committed to be built except under
2776 certain conditions, and a statement of those conditions or
2777 contingencies.
2778 (c) As to each facility committed to be built, or which
2779 will be committed to be built upon the happening of one of the
2780 conditions in paragraph (b), a statement of whether it will be
2781 owned by the unit owners having the use thereof or by an
2782 association or other entity which will be controlled by them, or
2783 others, and the location in the exhibits of the lease or other
2784 document providing for use of those facilities.
2785 (d) The year in which each facility will be available for
2786 use by the unit owners or, in the alternative, the maximum
2787 number of unit owners in the project at the time each of all of
2788 the facilities is committed to be completed.
2789 (e) A general description of the items of personal
2790 property, and the approximate number of each item of personal
2791 property, that the developer is committing to furnish for each
2792 room or other facility or, in the alternative, a representation
2793 as to the minimum amount of expenditure that will be made to
2794 purchase the personal property for the facility.
2795 (f) If there are leases, a description thereof, including
2796 the length of the term, the rent payable, and a description of
2797 any option to purchase.
2798
2799 Descriptions shall include location, areas, capacities, numbers,
2800 volumes, or sizes and may be stated as approximations or
2801 minimums.
2802 (8) Recreation lease or associated club membership:
2803 (a) If any recreational facilities or other common areas
2804 offered by the developer and available to, or to be used by,
2805 unit owners are to be leased or have club membership associated,
2806 the following statement in conspicuous type shall be included:
2807 THERE IS A RECREATIONAL FACILITIES LEASE ASSOCIATED WITH THIS
2808 COOPERATIVE; or, THERE IS A CLUB MEMBERSHIP ASSOCIATED WITH THIS
2809 COOPERATIVE. There shall be a reference to the location in the
2810 disclosure materials where the recreation lease or club
2811 membership is described in detail.
2812 (b) If it is mandatory that unit owners pay a fee, rent,
2813 dues, or other charges under a recreational facilities lease or
2814 club membership for the use of facilities, there shall be in
2815 conspicuous type the applicable statement:
2816 1. MEMBERSHIP IN THE RECREATIONAL FACILITIES CLUB IS
2817 MANDATORY FOR UNIT OWNERS; or
2818 2. UNIT OWNERS ARE REQUIRED, AS A CONDITION OF OWNERSHIP,
2819 TO BE LESSEES UNDER THE RECREATIONAL FACILITIES LEASE; or
2820 3. UNIT OWNERS ARE REQUIRED TO PAY THEIR SHARE OF THE COSTS
2821 AND EXPENSES OF MAINTENANCE, MANAGEMENT, UPKEEP, REPLACEMENT,
2822 RENT, AND FEES UNDER THE RECREATIONAL FACILITIES LEASE (OR THE
2823 OTHER INSTRUMENTS PROVIDING THE FACILITIES); or
2824 4. A similar statement of the nature of the organization or
2825 manner in which the use rights are created, and that unit owners
2826 are required to pay.
2827
2828 Immediately following the applicable statement, the location in
2829 the disclosure materials where the development is described in
2830 detail shall be stated.
2831 (c) If the developer, or any other person other than the
2832 unit owners and other persons having use rights in the
2833 facilities, reserves, or is entitled to receive, any rent, fee,
2834 or other payment for the use of the facilities, then there shall
2835 be the following statement in conspicuous type: THE UNIT OWNERS
2836 OR THE ASSOCIATION(S) MUST PAY RENT OR LAND USE FEES FOR
2837 RECREATIONAL OR OTHER COMMON AREAS. Immediately following this
2838 statement, the location in the disclosure materials where the
2839 rent or land use fees are described in detail shall be stated.
2840 (d) If, in any recreation format, whether leasehold, club,
2841 or other, any person other than the association has the right to
2842 a lien on the units to secure the payment of assessments, rent,
2843 or other exactions, there shall appear a statement in
2844 conspicuous type in substantially the following form:
2845 1. THERE IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO
2846 SECURE THE PAYMENT OF RENT AND OTHER EXACTIONS UNDER THE
2847 RECREATION LEASE. THE UNIT OWNER’S FAILURE TO MAKE THESE
2848 PAYMENTS MAY RESULT IN FORECLOSURE OF THE LIEN; or
2849 2. THERE IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO
2850 SECURE THE PAYMENT OF ASSESSMENTS OR OTHER EXACTIONS COMING DUE
2851 FOR THE USE, MAINTENANCE, UPKEEP, OR REPAIR OF THE RECREATIONAL
2852 OR COMMONLY USED AREAS. THE UNIT OWNER’S FAILURE TO MAKE THESE
2853 PAYMENTS MAY RESULT IN FORECLOSURE OF THE LIEN.
2854
2855 Immediately following the applicable statement, the location in
2856 the disclosure materials where the lien or lien right is
2857 described in detail shall be stated.
2858 (9) If the developer or any other person has the right to
2859 increase or add to the recreational facilities at any time after
2860 the establishment of the cooperative whose unit owners have use
2861 rights therein, without the consent of the unit owners or
2862 associations being required, there shall appear a statement in
2863 conspicuous type in substantially the following form:
2864 RECREATIONAL FACILITIES MAY BE EXPANDED OR ADDED WITHOUT CONSENT
2865 OF UNIT OWNERS OR THE ASSOCIATION(S). Immediately following this
2866 statement, the location in the disclosure materials where such
2867 reserved rights are described shall be stated.
2868 (10) A statement of whether the developer’s plan includes a
2869 program of leasing units rather than selling them, or leasing
2870 units and selling them subject to such leases. If so, there
2871 shall be a description of the plan, including the number and
2872 identification of the units and the provisions and term of the
2873 proposed leases, and a statement in boldfaced type that: THE
2874 UNITS MAY BE TRANSFERRED SUBJECT TO A LEASE.
2875 (11) The arrangements for management of the association and
2876 maintenance and operation of the cooperative property and of
2877 other property that will serve the unit owners of the
2878 cooperative property, and a description of the management
2879 contract and all other contracts for these purposes having a
2880 term in excess of 1 year, including the following:
2881 (a) The names of contracting parties.
2882 (b) The term of the contract.
2883 (c) The nature of the services included.
2884 (d) The compensation, stated on a monthly and annual basis,
2885 and provisions for increases in the compensation.
2886 (e) A reference to the volumes and pages of the cooperative
2887 documents and of the exhibits containing copies of such
2888 contracts.
2889
2890 Copies of all described contracts shall be attached as exhibits.
2891 If there is a contract for the management of the cooperative
2892 property, then a statement in conspicuous type in substantially
2893 the following form shall appear, identifying the proposed or
2894 existing contract manager: THERE IS (IS TO BE) A CONTRACT FOR
2895 THE MANAGEMENT OF THE COOPERATIVE PROPERTY WITH (NAME OF THE
2896 CONTRACT MANAGER). Immediately following this statement, the
2897 location in the disclosure materials of the contract for
2898 management of the cooperative property shall be stated.
2899 (12) If the developer or any other person or persons other
2900 than the unit owners has the right to retain control of the
2901 board of administration of the association for a period of time
2902 which can exceed 1 year after the closing of the sale of a
2903 majority of the units in that cooperative to persons other than
2904 successors or alternate developers, then a statement in
2905 conspicuous type in substantially the following form shall be
2906 included: THE DEVELOPER (OR OTHER PERSON) HAS THE RIGHT TO
2907 RETAIN CONTROL OF THE ASSOCIATION AFTER A MAJORITY OF THE UNITS
2908 HAVE BEEN SOLD. Immediately following this statement, the
2909 location in the disclosure materials where this right to control
2910 is described in detail shall be stated.
2911 (13) If there are any restrictions upon the sale, transfer,
2912 conveyance, or leasing of a unit, then a statement in
2913 conspicuous type in substantially the following form shall be
2914 included: THE SALE, LEASE, OR TRANSFER OF UNITS IS RESTRICTED OR
2915 CONTROLLED. Immediately following this statement, the location
2916 in the disclosure materials where the restriction, limitation,
2917 or control on the sale, lease, or transfer of units is described
2918 in detail shall be stated.
2919 (14) If the cooperative is part of a phase project, the
2920 following shall be stated:
2921 (a) A statement in conspicuous type in substantially the
2922 following form shall be included: THIS IS A PHASE COOPERATIVE.
2923 ADDITIONAL LAND AND UNITS MAY BE ADDED TO THIS COOPERATIVE.
2924 Immediately following this statement, the location in the
2925 disclosure materials where the phasing is described shall be
2926 stated.
2927 (b) A summary of the provisions of the declaration
2928 providing for the phasing.
2929 (c) A statement as to whether or not residential buildings
2930 and units which are added to the cooperative may be
2931 substantially different from the residential buildings and units
2932 originally in the cooperative, and, if the added residential
2933 buildings and units may be substantially different, there shall
2934 be a general description of the extent to which such added
2935 residential buildings and units may differ, and a statement in
2936 conspicuous type in substantially the following form shall be
2937 included: BUILDINGS AND UNITS WHICH ARE ADDED TO THE COOPERATIVE
2938 MAY BE SUBSTANTIALLY DIFFERENT FROM THE OTHER BUILDINGS AND
2939 UNITS IN THE COOPERATIVE. Immediately following this statement,
2940 the location in the disclosure materials where the extent to
2941 which added residential buildings and units may substantially
2942 differ is described shall be stated.
2943 (d) A statement of the maximum number of buildings
2944 containing units, the maximum and minimum number of units in
2945 each building, the maximum number of units, and the minimum and
2946 maximum square footage of the units that may be contained within
2947 each parcel of land which may be added to the cooperative.
2948 (15) If the cooperative is created by conversion of
2949 existing improvements, the following information shall be
2950 stated:
2951 (a) The information required by s. 719.616.
2952 (b) A caveat that there are no express warranties unless
2953 they are stated in writing by the developer.
2954 (16) A summary of the restrictions, if any, to be imposed
2955 on units concerning the use of any of the cooperative property,
2956 including statements as to whether there are restrictions upon
2957 children and pets, and reference to the volumes and pages of the
2958 cooperative documents where such restrictions are found, or if
2959 such restrictions are contained elsewhere, then a copy of the
2960 documents containing the restrictions shall be attached as an
2961 exhibit.
2962 (17) If there is any land that is offered by the developer
2963 for use by the unit owners and that is neither owned by them nor
2964 leased to them, the association, or any entity controlled by
2965 unit owners and other persons having the use rights to such
2966 land, a statement shall be made as to how such land will serve
2967 the cooperative. If any part of such land will serve the
2968 cooperative, the statement shall describe the land and the
2969 nature and term of service, and the cooperative documents or
2970 other instrument creating such servitude shall be included as an
2971 exhibit.
2972 (18) The manner in which utility and other services,
2973 including, but not limited to, sewage and waste disposal, water
2974 supply, and storm drainage, will be provided and the person or
2975 entity furnishing them.
2976 (19) An explanation of the manner in which the
2977 apportionment of common expenses and ownership of the common
2978 areas have been determined.
2979 (20) An estimated operating budget for the cooperative and
2980 the association, and a schedule of the unit owner’s expenses
2981 shall be attached as an exhibit and shall contain the following
2982 information:
2983 (a) The estimated monthly and annual expenses of the
2984 cooperative and the association that are collected from unit
2985 owners by assessments.
2986 (b) The estimated monthly and annual expenses of each unit
2987 owner for a unit, other than assessments payable to the
2988 association, payable by the unit owner to persons or entities
2989 other than the association, and the total estimated monthly and
2990 annual expense. There may be excluded from this estimate
2991 expenses that are personal to unit owners, which are not
2992 uniformly incurred by all unit owners, or which are not provided
2993 for or contemplated by the cooperative documents, including, but
2994 not limited to, the costs of private telephone; maintenance of
2995 the interior of cooperative units, which is not the obligation
2996 of the association; maid or janitorial services privately
2997 contracted for by the unit owners; utility bills billed directly
2998 to each unit owner for utility services to his or her unit;
2999 insurance premiums other than those incurred for policies
3000 obtained by the cooperative; and similar personal expenses of
3001 the unit owner. A unit owner’s estimated payments for
3002 assessments shall also be stated in the estimated amounts for
3003 the times when they will be due.
3004 (c) The estimated items of expenses of the cooperative and
3005 the association, except as excluded under paragraph (b),
3006 including, but not limited to, the following items, which shall
3007 be stated as an association expense collectible by assessments
3008 or as unit owners’ expenses payable to persons other than the
3009 association:
3010 1. Expenses for the association and cooperative:
3011 a. Administration of the association.
3012 b. Management fees.
3013 c. Maintenance.
3014 d. Rent for recreational and other commonly used areas.
3015 e. Taxes upon association property.
3016 f. Taxes upon leased areas.
3017 g. Insurance.
3018 h. Security provisions.
3019 i. Other expenses.
3020 j. Operating capital.
3021 k. Reserves.
3022 l. Fee payable to the division.
3023 2. Expenses for a unit owner:
3024 a. Rent for the unit, if subject to a lease.
3025 b. Rent payable by the unit owner directly to the lessor or
3026 agent under any recreational lease or lease for the use of
3027 commonly used areas, which use and payment are a mandatory
3028 condition of ownership and are not included in the common
3029 expense or assessments for common maintenance paid by the unit
3030 owners to the association.
3031 (d) The following statement in conspicuous type: THE BUDGET
3032 CONTAINED IN THIS OFFERING CIRCULAR HAS BEEN PREPARED IN
3033 ACCORDANCE WITH THE COOPERATIVE ACT AND IS A GOOD FAITH ESTIMATE
3034 ONLY AND REPRESENTS AN APPROXIMATION OF FUTURE EXPENSES BASED ON
3035 FACTS AND CIRCUMSTANCES EXISTING AT THE TIME OF ITS PREPARATION.
3036 ACTUAL COSTS OF SUCH ITEMS MAY EXCEED THE ESTIMATED COSTS. SUCH
3037 CHANGES IN COST DO NOT CONSTITUTE MATERIAL ADVERSE CHANGES IN
3038 THE OFFERING.
3039 (e) Each budget for an association prepared by a developer
3040 consistent with this subsection shall be prepared in good faith
3041 and shall reflect accurate estimated amounts for the required
3042 items in paragraph (c) at the time of the filing of the offering
3043 circular with the division, and subsequent increased amounts of
3044 any item included in the association’s estimated budget that are
3045 beyond the control of the developer may shall not be considered
3046 an amendment that would give rise to rescission rights set forth
3047 in s. 719.503(1)(a) or (b), nor shall such increases modify,
3048 void, or otherwise affect any guarantee of the developer
3049 contained in the offering circular or any purchase contract. It
3050 is the intent of this paragraph to clarify existing law.
3051 (f) The estimated amounts shall be stated for a period of
3052 at least 12 months and may distinguish between the period before
3053 prior to the time unit owners other than the developer elect a
3054 majority of the board of administration and the period after
3055 that date.
3056 (21) A schedule of estimated closing expenses to be paid by
3057 a buyer or lessee of a unit and a statement of whether title
3058 opinion or title insurance policy is available to the buyer and,
3059 if so, at whose expense.
3060 (22) The identity of the developer and the chief operating
3061 officer or principal directing the creation and sale of the
3062 cooperative and a statement of its and his or her experience in
3063 this field.
3064 (23) Copies of the following, to the extent they are
3065 applicable, shall be included as exhibits:
3066 (a) The cooperative documents, or the proposed cooperative
3067 documents if the documents have not been recorded.
3068 (b) The articles of incorporation creating the association.
3069 (c) The bylaws of the association.
3070 (d) The ground lease or other underlying lease of the
3071 cooperative.
3072 (e) The management agreement and all maintenance and other
3073 contracts for management of the association and operation of the
3074 cooperative and facilities used by the unit owners having a
3075 service term in excess of 1 year.
3076 (f) The estimated operating budget for the cooperative and
3077 the required schedule of unit owners’ expenses.
3078 (g) A copy of the floor plan of the unit and the plot plan
3079 showing the location of the residential buildings and the
3080 recreation and other common areas.
3081 (h) The lease of recreational and other facilities that
3082 will be used only by unit owners of the subject cooperative.
3083 (i) The lease of facilities used by owners and others.
3084 (j) The form of unit lease, if the offer is of a leasehold.
3085 (k) A declaration of servitude of properties serving the
3086 cooperative but not owned by unit owners or leased to them or
3087 the association.
3088 (l) The statement of condition of the existing building or
3089 buildings, if the offering is of units in an operation being
3090 converted to cooperative ownership.
3091 (m) The statement of inspection for termite damage and
3092 treatment of the existing improvements, if the cooperative is a
3093 conversion.
3094 (n) The form of agreement for sale or lease of units.
3095 (o) A copy of the agreement for escrow of payments made to
3096 the developer before prior to closing.
3097 (p) A copy of the documents containing any restrictions on
3098 use of the property required by subsection (16).
3099 (24) Any prospectus or offering circular complying with the
3100 provisions of former ss. 711.69 and 711.802 may continue to be
3101 used without amendment, or may be amended to comply with this
3102 chapter.
3103 (25) A brief narrative description of the location and
3104 effect of all existing and intended easements located or to be
3105 located on the cooperative property other than those in the
3106 declaration.
3107 (26) If the developer is required by state or local
3108 authorities to obtain acceptance or approval of any dock or
3109 marina facility intended to serve the cooperative, a copy of
3110 such acceptance or approval acquired by the time of filing with
3111 the division pursuant to s. 719.502 or a statement that such
3112 acceptance has not been acquired or received.
3113 (27) Evidence demonstrating that the developer has an
3114 ownership, leasehold, or contractual interest in the land upon
3115 which the cooperative is to be developed.
3116 Section 39. Section 719.508, Florida Statutes, is amended
3117 to read:
3118 719.508 Regulation by Division of Hotels and Restaurants.
3119 In addition to the authority, regulation, or control exercised
3120 by the Division of Florida Condominiums, Homeowners’
3121 Associations, Timeshares, and Mobile Homes pursuant to this act
3122 with respect to cooperatives, buildings included in a
3123 cooperative property shall be subject to the authority,
3124 regulation, or control of the Division of Hotels and Restaurants
3125 of the Department of Business and Professional Regulation, to
3126 the extent provided in chapters 399 and 509.
3127 Section 40. Paragraph (a) of subsection (2) of section
3128 719.608, Florida Statutes, is amended to read:
3129 719.608 Notice of intended conversion; time of delivery;
3130 content.—
3131 (2)(a) Each notice of intended conversion shall be dated
3132 and in writing. The notice shall contain the following
3133 statement, with the phrases of the following statement which
3134 appear in upper case printed in conspicuous type:
3135
3136 These apartments are being converted to cooperative by
3137 ...(name of developer)..., the developer.
3138 1. YOU MAY REMAIN AS A RESIDENT UNTIL THE EXPIRATION OF
3139 YOUR RENTAL AGREEMENT. FURTHER, YOU MAY EXTEND YOUR RENTAL
3140 AGREEMENT AS FOLLOWS:
3141 a. If you have continuously been a resident of these
3142 apartments during the last 180 days and your rental agreement
3143 expires during the next 270 days, you may extend your rental
3144 agreement for up to 270 days after the date of this notice.
3145 b. If you have not been a continuous resident of these
3146 apartments for the last 180 days and your rental agreement
3147 expires during the next 180 days, you may extend your rental
3148 agreement for up to 180 days after the date of this notice.
3149 c. IN ORDER FOR YOU TO EXTEND YOUR RENTAL AGREEMENT, YOU
3150 MUST GIVE THE DEVELOPER WRITTEN NOTICE WITHIN 45 DAYS AFTER THE
3151 DATE OF THIS NOTICE.
3152 2. IF YOUR RENTAL AGREEMENT EXPIRES IN THE NEXT 45 DAYS,
3153 you may extend your rental agreement for up to 45 days after the
3154 date of this notice while you decide whether to extend your
3155 rental agreement as explained above. To do so, you must notify
3156 the developer in writing. You will then have the full 45 days to
3157 decide whether to extend your rental agreement as explained
3158 above.
3159 3. During the extension of your rental agreement you will
3160 be charged the same rent that you are now paying.
3161 4. YOU MAY CANCEL YOUR RENTAL AGREEMENT AND ANY EXTENSION
3162 OF THE RENTAL AGREEMENT AS FOLLOWS:
3163 a. If your rental agreement began or was extended or
3164 renewed after May 1, 1980, and your rental agreement, including
3165 extensions and renewals, has an unexpired term of 180 days or
3166 less, you may cancel your rental agreement upon 30 days’ written
3167 notice and move. Also, upon 30 days’ written notice, you may
3168 cancel any extension of the rental agreement.
3169 b. If your rental agreement was not begun or was not
3170 extended or renewed after May 1, 1980, you may not cancel the
3171 rental agreement without the consent of the developer. If your
3172 rental agreement, including extensions and renewals, has an
3173 unexpired term of 180 days or less, you may, however, upon 30
3174 days’ written notice cancel any extension of the rental
3175 agreement.
3176 5. All notices must be given in writing and sent by mail,
3177 return receipt requested, or delivered in person to the
3178 developer at this address: ...(name and address of
3179 developer)....
3180 6. If you have continuously been a resident of these
3181 apartments during the last 180 days:
3182 a. You have the right to purchase your apartment and will
3183 have 45 days to decide whether to purchase. If you do not buy
3184 the unit at that price and the unit is later offered at a lower
3185 price, you will have the opportunity to buy the unit at the
3186 lower price. However, in all events your right to purchase the
3187 unit ends when the rental agreement or any extension of the
3188 rental agreement ends or when you waive this right in writing.
3189 b. Within 90 days you will be provided purchase information
3190 relating to your apartment, including the price of your unit and
3191 the condition of the building. If you do not receive this
3192 information within 90 days, your rental agreement and any
3193 extension will be extended 1 day for each day over 90 days until
3194 you are given the purchase information. If you do not want this
3195 rental agreement extension, you must notify the developer in
3196 writing.
3197 7. If you have any questions regarding this conversion or
3198 the Cooperative Act, you may contact the developer or the state
3199 agency which regulates cooperatives: The Division of Florida
3200 Condominiums, Homeowners’ Associations, Timeshares, and Mobile
3201 Homes, ...(Tallahassee address and telephone number of
3202 division)....
3203 Section 41. Subsection (11) of section 721.05, Florida
3204 Statutes, is amended to read:
3205 721.05 Definitions.—As used in this chapter, the term:
3206 (11) “Division” means the Division of Florida Condominiums,
3207 Homeowners’ Associations, Timeshares, and Mobile Homes of the
3208 Department of Business and Professional Regulation.
3209 Section 42. Paragraph (d) of subsection (2) of section
3210 721.07, Florida Statutes, is amended to read:
3211 721.07 Public offering statement.—Prior to offering any
3212 timeshare plan, the developer must submit a filed public
3213 offering statement to the division for approval as prescribed by
3214 s. 721.03, s. 721.55, or this section. Until the division
3215 approves such filing, any contract regarding the sale of that
3216 timeshare plan is subject to cancellation by the purchaser
3217 pursuant to s. 721.10.
3218 (2)
3219 (d) A developer shall have the authority to deliver to
3220 purchasers any purchaser public offering statement that is not
3221 yet approved by the division, provided that the following shall
3222 apply:
3223 1. At the time the developer delivers an unapproved
3224 purchaser public offering statement to a purchaser pursuant to
3225 this paragraph, the developer shall deliver a fully completed
3226 and executed copy of the purchase contract required by s. 721.06
3227 that contains the following statement in conspicuous type in
3228 substantially the following form which shall replace the
3229 statements required by s. 721.06(1)(g):
3230
3231 The developer is delivering to you a public offering statement
3232 that has been filed with but not yet approved by the Division of
3233 Florida Condominiums, Homeowners’ Associations, Timeshares, and
3234 Mobile Homes. Any revisions to the unapproved public offering
3235 statement you have received must be delivered to you, but only
3236 if the revisions materially alter or modify the offering in a
3237 manner adverse to you. After the division approves the public
3238 offering statement, you will receive notice of the approval from
3239 the developer and the required revisions, if any.
3240
3241 Your statutory right to cancel this transaction without any
3242 penalty or obligation expires 10 calendar days after the date
3243 you signed your purchase contract or the date on which you
3244 receive the last of all documents required to be given to you
3245 pursuant to section 721.07(6), Florida Statutes, or 10 calendar
3246 days after you receive revisions required to be delivered to
3247 you, if any, whichever is later. If you decide to cancel this
3248 contract, you must notify the seller in writing of your intent
3249 to cancel. Your notice of cancellation shall be effective upon
3250 the date sent and shall be sent to ...(Name of Seller)... at
3251 ...(Address of Seller).... Any attempt to obtain a waiver of
3252 your cancellation right is void and of no effect. While you may
3253 execute all closing documents in advance, the closing, as
3254 evidenced by delivery of the deed or other document, before
3255 expiration of your 10-day cancellation period, is prohibited.
3256
3257 2. After receipt of approval from the division and before
3258 prior to closing, if any revisions made to the documents
3259 contained in the purchaser public offering statement materially
3260 alter or modify the offering in a manner adverse to a purchaser,
3261 the developer shall send the purchaser such revisions, together
3262 with a notice containing a statement in conspicuous type in
3263 substantially the following form:
3264
3265 The unapproved public offering statement previously delivered to
3266 you, together with the enclosed revisions, has been approved by
3267 the Division of Florida Condominiums, Homeowners’ Associations,
3268 Timeshares, and Mobile Homes. Accordingly, your cancellation
3269 right expires 10 calendar days after you sign your purchase
3270 contract or 10 calendar days after you receive these revisions,
3271 whichever is later. If you have any questions regarding your
3272 cancellation rights, you may contact the division at [insert
3273 division’s current address].
3274
3275 3. After receipt of approval from the division and before
3276 prior to closing, if no revisions have been made to the
3277 documents contained in the unapproved purchaser public offering
3278 statement, or if such revisions do not materially alter or
3279 modify the offering in a manner adverse to a purchaser, the
3280 developer shall send the purchaser a notice containing a
3281 statement in conspicuous type in substantially the following
3282 form:
3283
3284 The unapproved public offering statement previously delivered to
3285 you has been approved by the Division of Florida Condominiums,
3286 Homeowners’ Associations, Timeshares, and Mobile Homes.
3287 Revisions made to the unapproved public offering statement, if
3288 any, are not required to be delivered to you or are not deemed
3289 by the developer, in its opinion, to materially alter or modify
3290 the offering in a manner that is adverse to you. Accordingly,
3291 your cancellation right expired 10 days after you signed your
3292 purchase contract. A complete copy of the approved public
3293 offering statement is available through the managing entity for
3294 inspection as part of the books and records of the plan. If you
3295 have any questions regarding your cancellation rights, you may
3296 contact the division at [insert division’s current address].
3297 Section 43. Subsection (8) of section 721.08, Florida
3298 Statutes, is amended to read:
3299 721.08 Escrow accounts; nondisturbance instruments;
3300 alternate security arrangements; transfer of legal title.—
3301 (8) An escrow agent holding escrowed funds pursuant to this
3302 chapter that have not been claimed for a period of 5 years after
3303 the date of deposit shall make at least one reasonable attempt
3304 to deliver such unclaimed funds to the purchaser who submitted
3305 such funds to escrow. In making such attempt, an escrow agent is
3306 entitled to rely on a purchaser’s last known address as set
3307 forth in the books and records of the escrow agent and is not
3308 required to conduct any further search for the purchaser. If an
3309 escrow agent’s attempt to deliver unclaimed funds to any
3310 purchaser is unsuccessful, the escrow agent may deliver such
3311 unclaimed funds to the division and the division shall deposit
3312 such unclaimed funds in the Division of Florida Condominiums,
3313 Homeowners’ Associations, Timeshares, and Mobile Homes Trust
3314 Fund, 30 days after giving notice in a publication of general
3315 circulation in the county in which the timeshare property
3316 containing the purchaser’s timeshare interest is located. The
3317 purchaser may claim the same at any time before prior to the
3318 delivery of such funds to the division. After delivery of such
3319 funds to the division, the purchaser shall have no more rights
3320 to the unclaimed funds. The escrow agent is shall not be liable
3321 for any claims from any party arising out of the escrow agent’s
3322 delivery of the unclaimed funds to the division pursuant to this
3323 section.
3324 Section 44. Paragraph (e) of subsection (5) of section
3325 721.26, Florida Statutes, is amended to read:
3326 721.26 Regulation by division.—The division has the power
3327 to enforce and ensure compliance with this chapter, except for
3328 parts III and IV, using the powers provided in this chapter, as
3329 well as the powers prescribed in chapters 718 and 719. In
3330 performing its duties, the division shall have the following
3331 powers and duties:
3332 (5) Notwithstanding any remedies available to purchasers,
3333 if the division has reasonable cause to believe that a violation
3334 of this chapter, or of any division rule adopted or order issued
3335 pursuant to this chapter, has occurred, the division may
3336 institute enforcement proceedings in its own name against any
3337 regulated party, as such term is defined in this subsection:
3338 (e)1. The division may impose a penalty against any
3339 regulated party for a violation of this chapter or any rule
3340 adopted thereunder. A penalty may be imposed on the basis of
3341 each day of continuing violation, but in no event may the
3342 penalty for any offense exceed $10,000. All accounts collected
3343 shall be deposited with the Chief Financial Officer to the
3344 credit of the Division of Florida Condominiums, Homeowners’
3345 Associations, Timeshares, and Mobile Homes Trust Fund.
3346 2.a. If a regulated party fails to pay a penalty, the
3347 division shall thereupon issue an order directing that such
3348 regulated party cease and desist from further operation until
3349 such time as the penalty is paid; or the division may pursue
3350 enforcement of the penalty in a court of competent jurisdiction.
3351 b. If an owners’ association or managing entity fails to
3352 pay a civil penalty, the division may pursue enforcement in a
3353 court of competent jurisdiction.
3354 Section 45. Section 721.28, Florida Statutes, is amended to
3355 read:
3356 721.28 Division of Florida Condominiums, Homeowners’
3357 Associations, Timeshares, and Mobile Homes Trust Fund.—All funds
3358 collected by the division and any amounts paid as fees or
3359 penalties under this chapter shall be deposited in the State
3360 Treasury to the credit of the Division of Florida Condominiums,
3361 Homeowners’ Associations, Timeshares, and Mobile Homes Trust
3362 Fund created by s. 718.509.
3363 Section 46. Paragraph (c) of subsection (1) of section
3364 721.301, Florida Statutes, is amended to read:
3365 721.301 Florida Timesharing, Vacation Club, and Hospitality
3366 Program.—
3367 (1)
3368 (c) The director may designate funds from the Division of
3369 Florida Condominiums, Homeowners’ Associations, Timeshares, and
3370 Mobile Homes Trust Fund, not to exceed $50,000 annually, to
3371 support the projects and proposals undertaken pursuant to
3372 paragraph (b). All state trust funds to be expended pursuant to
3373 this section must be matched equally with private moneys and
3374 shall comprise no more than half of the total moneys expended
3375 annually.
3376 Section 47. Subsection (2) and paragraph (a) of subsection
3377 (7) of section 723.003, Florida Statutes, are amended to read:
3378 723.003 Definitions.—As used in this chapter, the term:
3379 (2) “Division” means the Division of Florida Condominiums,
3380 Homeowners’ Associations, Timeshares, and Mobile Homes of the
3381 Department of Business and Professional Regulation.
3382 (7)(a) “Mediation” means a process whereby a mediator
3383 appointed by the Division of Florida Condominiums, Homeowners’
3384 Associations, Timeshares, and Mobile Homes, or mutually selected
3385 by the parties, acts to encourage and facilitate the resolution
3386 of a dispute. It is an informal and nonadversarial process with
3387 the objective of helping the disputing parties reach a mutually
3388 acceptable agreement.
3389 Section 48. Paragraph (e) of subsection (5) of section
3390 723.006, Florida Statutes, is amended to read:
3391 723.006 Powers and duties of division.—In performing its
3392 duties, the division has the following powers and duties:
3393 (5) Notwithstanding any remedies available to mobile home
3394 owners, mobile home park owners, and homeowners’ associations,
3395 if the division has reasonable cause to believe that a violation
3396 of any provision of this chapter or related rule has occurred,
3397 the division may institute enforcement proceedings in its own
3398 name against a developer, mobile home park owner, or homeowners’
3399 association, or its assignee or agent, as follows:
3400 (e)1. The division may impose a civil penalty against a
3401 mobile home park owner or homeowners’ association, or its
3402 assignee or agent, for any violation of this chapter, a properly
3403 adopted park rule or regulation, or a rule adopted pursuant
3404 hereto. A penalty may be imposed on the basis of each separate
3405 violation and, if the violation is a continuing one, for each
3406 day of continuing violation, but in no event may the penalty for
3407 each separate violation or for each day of continuing violation
3408 exceed $5,000. All amounts collected shall be deposited with the
3409 Chief Financial Officer to the credit of the Division of Florida
3410 Condominiums, Homeowners’ Associations, Timeshares, and Mobile
3411 Homes Trust Fund.
3412 2. If a violator fails to pay the civil penalty, the
3413 division shall thereupon issue an order directing that such
3414 violator cease and desist from further violation until such time
3415 as the civil penalty is paid or may pursue enforcement of the
3416 penalty in a court of competent jurisdiction. If a homeowners’
3417 association fails to pay the civil penalty, the division shall
3418 thereupon pursue enforcement in a court of competent
3419 jurisdiction, and the order imposing the civil penalty or the
3420 cease and desist order does shall not become effective until 20
3421 days after the date of such order. Any action commenced by the
3422 division shall be brought in the county in which the division
3423 has its executive offices or in which the violation occurred.
3424 Section 49. Section 723.009, Florida Statutes, is amended
3425 to read:
3426 723.009 Division of Florida Condominiums, Homeowners’
3427 Associations, Timeshares, and Mobile Homes Trust Fund.—All
3428 proceeds from the fees, penalties, and fines imposed pursuant to
3429 this chapter shall be deposited into the Division of Florida
3430 Condominiums, Homeowners’ Associations, Timeshares, and Mobile
3431 Homes Trust Fund created by s. 718.509. Moneys in this fund, as
3432 appropriated by the Legislature pursuant to chapter 216, may be
3433 used to defray the expenses incurred by the division in
3434 administering the provisions of this chapter.
3435 Section 50. Paragraph (c) of subsection (2) of section
3436 723.0611, Florida Statutes, is amended to read:
3437 723.0611 Florida Mobile Home Relocation Corporation.—
3438 (2)
3439 (c) The corporation shall, for purposes of s. 768.28, be
3440 considered an agency of the state. Agents or employees of the
3441 corporation, members of the board of directors of the
3442 corporation, or representatives of the Division of Florida
3443 Condominiums, Homeowners’ Associations, Timeshares, and Mobile
3444 Homes shall be considered officers, employees, or agents of the
3445 state, and actions against them and the corporation shall be
3446 governed by s. 768.28.
3447 Section 51. Section 723.1255, Florida Statutes, is amended
3448 to read:
3449 723.1255 Alternative resolution of recall disputes.—The
3450 Division of Florida Condominiums, Homeowners’ Associations,
3451 Timeshares, and Mobile Homes of the Department of Business and
3452 Professional Regulation shall adopt rules of procedure to govern
3453 binding recall arbitration proceedings.
3454 Section 52. This act shall take effect July 1, 2016.
