Bill Amendment: FL S0436 | 2013 | Regular Session
NOTE: For additional amemendments please see the Bill Drafting List
Bill Title: Residential Properties
Status: 2013-04-25 - Laid on Table, companion bill(s) passed, see CS/CS/CS/HB 73 (Ch. 2013-188), CS/HB 7025 (Ch. 2013-159), CS/HB 7119 (Ch. 2013-218), CS/CS/SB 120 (Ch. 2013-122) [S0436 Detail]
Download: Florida-2013-S0436-Regulated_Industries_Committee_Amendment_Delete_All_780354.html
Bill Title: Residential Properties
Status: 2013-04-25 - Laid on Table, companion bill(s) passed, see CS/CS/CS/HB 73 (Ch. 2013-188), CS/HB 7025 (Ch. 2013-159), CS/HB 7119 (Ch. 2013-218), CS/CS/SB 120 (Ch. 2013-122) [S0436 Detail]
Download: Florida-2013-S0436-Regulated_Industries_Committee_Amendment_Delete_All_780354.html
Florida Senate - 2013 COMMITTEE AMENDMENT
Bill No. SB 436
Barcode 780354
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
02/21/2013 .
.
.
.
—————————————————————————————————————————————————————————————————
—————————————————————————————————————————————————————————————————
The Committee on Regulated Industries (Legg) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Subsection (9) of section 399.02, Florida
6 Statutes, is amended to read:
7 399.02 General requirements.—
8 (9) Updates to the Safety Code for Existing Elevators and
9 Escalators, ASME A17.1 and A17.3, which require Phase II
10 Firefighters’ Service on elevators may not be enforced until
11 July 1, 2015, or until the elevator is replaced or requires
12 major modification, whichever occurs first, on elevators in
13 condominiums or multifamily residential buildings, including
14 those that are part of a continuing care facility licensed under
15 chapter 651, or similar retirement community with apartments,
16 having a certificate of occupancy by the local building
17 authority that was issued before July 1, 2008. This exception
18 does not prevent an elevator owner from requesting a variance
19 from the applicable codes before or after July 1, 2015. This
20 subsection does not prohibit the division from granting
21 variances pursuant to s. 120.542 and subsection (8). The
22 division shall adopt rules to administer this subsection.
23 Section 2. Subsection (2) of section 514.0115, Florida
24 Statutes, is amended to read:
25 514.0115 Exemptions from supervision or regulation;
26 variances.—
27 (2)(a) Pools serving no more than 32 condominium units, or
28 cooperative units, or parcels in a homeowners’ association as
29 defined in s. 720.301, which are not operated as a transient
30 public lodging establishment, are shall be exempt from
31 supervision under this chapter, except for water quality.
32 (b) Pools serving more than 32 condominium units, or
33 cooperative units, or parcels in a homeowners’ association as
34 defined in s. 720.301, associations of more than 32 units and
35 whose recorded documents prohibit the rental or sublease of the
36 units or parcels for periods of less than 60 days are exempt
37 from supervision under this chapter, except that the
38 condominium, or cooperative, or parcel owner or association must
39 file applications with the department and obtain construction
40 plans approval and receive an initial operating permit. The
41 department shall inspect the swimming pools at such places
42 annually, at the fee set forth in s. 514.033(3), or upon request
43 by a unit owner, to determine compliance with department rules
44 relating to water quality and lifesaving equipment. The
45 department may not require compliance with rules relating to
46 swimming pool lifeguard standards.
47 Section 3. Subsection (8), paragraphs (g) and (j) of
48 subsection (11), paragraph (c) of subsection (12), and
49 paragraphs (a) and (b) of subsection (13) of section 718.111,
50 Florida Statutes, are amended to read:
51 718.111 The association.—
52 (8) PURCHASE OF LEASES.—The association has the power to
53 purchase any land or recreation lease, subject to the same
54 manner of approval as in s. 718.114 for the acquisition of
55 leaseholds upon the approval of such voting interest as is
56 required by the declaration. If the declaration makes no
57 provision for acquisition of the land or recreation lease, the
58 vote required shall be that required to amend the declaration to
59 permit the acquisition.
60 (11) INSURANCE.—In order to protect the safety, health, and
61 welfare of the people of the State of Florida and to ensure
62 consistency in the provision of insurance coverage to
63 condominiums and their unit owners, this subsection applies to
64 every residential condominium in the state, regardless of the
65 date of its declaration of condominium. It is the intent of the
66 Legislature to encourage lower or stable insurance premiums for
67 associations described in this subsection.
68 (g) A condominium unit owner’s policy must conform to the
69 requirements of s. 627.714.
70 1. All reconstruction work after a property loss must be
71 undertaken by the association except as otherwise authorized in
72 this section. A unit owner may undertake reconstruction work on
73 portions of the unit with the prior written consent of the board
74 of administration. However, such work may be conditioned upon
75 the approval of the repair methods, the qualifications of the
76 proposed contractor, or the contract that is used for that
77 purpose. A unit owner must obtain all required governmental
78 permits and approvals before commencing reconstruction.
79 2. Unit owners are responsible for the cost of
80 reconstruction of any portions of the condominium property for
81 which the unit owner is required to carry property insurance, or
82 for which the unit owner is responsible under paragraph (j), and
83 the cost of any such reconstruction work undertaken by the
84 association is chargeable to the unit owner and enforceable as
85 an assessment and may be collected in the manner provided for
86 the collection of assessments pursuant to s. 718.116.
87 3. A multicondominium association may elect, by a majority
88 vote of the collective members of the condominiums operated by
89 the association, to operate the condominiums as a single
90 condominium for purposes of insurance matters, including, but
91 not limited to, the purchase of the property insurance required
92 by this section and the apportionment of deductibles and damages
93 in excess of coverage. The election to aggregate the treatment
94 of insurance premiums, deductibles, and excess damages
95 constitutes an amendment to the declaration of all condominiums
96 operated by the association, and the costs of insurance must be
97 stated in the association budget. The amendments must be
98 recorded as required by s. 718.110.
99 (j) Any portion of the condominium property that must be
100 insured by the association against property loss pursuant to
101 paragraph (f) which is damaged by an insurable event shall be
102 reconstructed, repaired, or replaced as necessary by the
103 association as a common expense. All property insurance
104 deductibles, uninsured losses, and other damages in excess of
105 property insurance coverage under the property insurance
106 policies maintained by the association are a common expense of
107 the condominium, except that:
108 1. A unit owner is responsible for the costs of repair or
109 replacement of any portion of the condominium property not paid
110 by insurance proceeds if such damage is caused by intentional
111 conduct, negligence, or failure to comply with the terms of the
112 declaration or the rules of the association by a unit owner, the
113 members of his or her family, unit occupants, tenants, guests,
114 or invitees, without compromise of the subrogation rights of the
115 insurer.
116 2. The provisions of subparagraph 1. regarding the
117 financial responsibility of a unit owner for the costs of
118 repairing or replacing other portions of the condominium
119 property also apply to the costs of repair or replacement of
120 personal property of other unit owners or the association, as
121 well as other property, whether real or personal, which the unit
122 owners are required to insure.
123 3. To the extent the cost of repair or reconstruction for
124 which the unit owner is responsible under this paragraph is
125 reimbursed to the association by insurance proceeds, and the
126 association has collected the cost of such repair or
127 reconstruction from the unit owner, the association shall
128 reimburse the unit owner without the waiver of any rights of
129 subrogation.
130 4. The association is not obligated to pay for
131 reconstruction or repairs of property losses as a common expense
132 if the property losses were known or should have been known to a
133 unit owner and were not reported to the association until after
134 the insurance claim of the association for that property was
135 settled or resolved with finality, or denied because it was
136 untimely filed.
137 (12) OFFICIAL RECORDS.—
138 (c) The official records of the association are open to
139 inspection by any association member or the authorized
140 representative of such member at all reasonable times. The right
141 to inspect the records includes the right to make or obtain
142 copies, at the reasonable expense, if any, of the member. The
143 association may adopt reasonable rules regarding the frequency,
144 time, location, notice, and manner of record inspections and
145 copying. The failure of an association to provide the records
146 within 10 working days after receipt of a written request
147 creates a rebuttable presumption that the association willfully
148 failed to comply with this paragraph. A unit owner who is denied
149 access to official records is entitled to the actual damages or
150 minimum damages for the association’s willful failure to comply.
151 Minimum damages are $50 per calendar day for up to 10 days,
152 beginning on the 11th working day after receipt of the written
153 request. The failure to permit inspection entitles any person
154 prevailing in an enforcement action to recover reasonable
155 attorney attorney’s fees from the person in control of the
156 records who, directly or indirectly, knowingly denied access to
157 the records. Any person who knowingly or intentionally defaces
158 or destroys accounting records that are required by this chapter
159 to be maintained during the period for which such records are
160 required to be maintained, or who knowingly or intentionally
161 fails to create or maintain accounting records that are required
162 to be created or maintained, with the intent of causing harm to
163 the association or one or more of its members, is personally
164 subject to a civil penalty pursuant to s. 718.501(1)(d). The
165 association shall maintain an adequate number of copies of the
166 declaration, articles of incorporation, bylaws, and rules, and
167 all amendments to each of the foregoing, as well as the question
168 and answer sheet as described in s. 718.504 and year-end
169 financial information required under this section, on the
170 condominium property to ensure their availability to unit owners
171 and prospective purchasers, and may charge its actual costs for
172 preparing and furnishing these documents to those requesting the
173 documents. An association shall allow a member or his or her
174 authorized representative to use a portable device, including a
175 smartphone, tablet, portable scanner, or any other technology
176 capable of scanning or taking photographs, to make an electronic
177 copy of the official records in lieu of the association’s
178 providing the member or his or her authorized representative
179 with a copy of such records. The association may not charge a
180 member or his or her authorized representative for the use of a
181 portable device. Notwithstanding this paragraph, the following
182 records are not accessible to unit owners:
183 1. Any record protected by the lawyer-client privilege as
184 described in s. 90.502 and any record protected by the work
185 product privilege, including a record prepared by an association
186 attorney or prepared at the attorney’s express direction, which
187 reflects a mental impression, conclusion, litigation strategy,
188 or legal theory of the attorney or the association, and which
189 was prepared exclusively for civil or criminal litigation or for
190 adversarial administrative proceedings, or which was prepared in
191 anticipation of such litigation or proceedings until the
192 conclusion of the litigation or proceedings.
193 2. Information obtained by an association in connection
194 with the approval of the lease, sale, or other transfer of a
195 unit.
196 3. Personnel records of association or management company
197 employees, including, but not limited to, disciplinary, payroll,
198 health, and insurance records. For purposes of this
199 subparagraph, the term “personnel records” does not include
200 written employment agreements with an association employee or
201 management company, or budgetary or financial records that
202 indicate the compensation paid to an association employee.
203 4. Medical records of unit owners.
204 5. Social security numbers, driver driver’s license
205 numbers, credit card numbers, e-mail addresses, telephone
206 numbers, facsimile numbers, emergency contact information,
207 addresses of a unit owner other than as provided to fulfill the
208 association’s notice requirements, and other personal
209 identifying information of any person, excluding the person’s
210 name, unit designation, mailing address, property address, and
211 any address, e-mail address, or facsimile number provided to the
212 association to fulfill the association’s notice requirements.
213 However, an owner may consent in writing to the disclosure of
214 protected information described in this subparagraph. The
215 association is not liable for the inadvertent disclosure of
216 information that is protected under this subparagraph if the
217 information is included in an official record of the association
218 and is voluntarily provided by an owner and not requested by the
219 association.
220 6. Electronic security measures that are used by the
221 association to safeguard data, including passwords.
222 7. The software and operating system used by the
223 association which allow the manipulation of data, even if the
224 owner owns a copy of the same software used by the association.
225 The data is part of the official records of the association.
226 (13) FINANCIAL REPORTING.—Within 90 days after the end of
227 the fiscal year, or annually on a date provided in the bylaws,
228 the association shall prepare and complete, or contract for the
229 preparation and completion of, a financial report for the
230 preceding fiscal year. Within 21 days after the final financial
231 report is completed by the association or received from the
232 third party, but not later than 120 days after the end of the
233 fiscal year or other date as provided in the bylaws, the
234 association shall mail to each unit owner at the address last
235 furnished to the association by the unit owner, or hand deliver
236 to each unit owner, a copy of the financial report or a notice
237 that a copy of the financial report will be mailed or hand
238 delivered to the unit owner, without charge, upon receipt of a
239 written request from the unit owner. The division shall adopt
240 rules setting forth uniform accounting principles and standards
241 to be used by all associations and addressing the financial
242 reporting requirements for multicondominium associations. The
243 rules must include, but not be limited to, standards for
244 presenting a summary of association reserves, including a good
245 faith estimate disclosing the annual amount of reserve funds
246 that would be necessary for the association to fully fund
247 reserves for each reserve item based on the straight-line
248 accounting method. This disclosure is not applicable to reserves
249 funded via the pooling method. In adopting such rules, the
250 division shall consider the number of members and annual
251 revenues of an association. Financial reports shall be prepared
252 as follows:
253 (a) An association that meets the criteria of this
254 paragraph shall prepare a complete set of financial statements
255 in accordance with generally accepted accounting principles. The
256 financial statements must be based upon the association’s total
257 annual revenues, as follows:
258 1. An association with total annual revenues of $200,000
259 $100,000 or more, but less than $300,000 $200,000, shall prepare
260 compiled financial statements.
261 2. An association with total annual revenues of at least
262 $300,000 $200,000, but less than $500,000 $400,000, shall
263 prepare reviewed financial statements.
264 3. An association with total annual revenues of $500,000
265 $400,000 or more shall prepare audited financial statements.
266 (b)1. An association with total annual revenues of less
267 than $200,000 $100,000 shall prepare a report of cash receipts
268 and expenditures.
269 2. An association that operates fewer than 75 units,
270 regardless of the association’s annual revenues, shall prepare a
271 report of cash receipts and expenditures in lieu of financial
272 statements required by paragraph (a).
273 3. A report of cash receipts and disbursements must
274 disclose the amount of receipts by accounts and receipt
275 classifications and the amount of expenses by accounts and
276 expense classifications, including, but not limited to, the
277 following, as applicable: costs for security, professional and
278 management fees and expenses, taxes, costs for recreation
279 facilities, expenses for refuse collection and utility services,
280 expenses for lawn care, costs for building maintenance and
281 repair, insurance costs, administration and salary expenses, and
282 reserves accumulated and expended for capital expenditures,
283 deferred maintenance, and any other category for which the
284 association maintains reserves.
285 Section 4. Paragraphs (d) and (j) of subsection (2) of
286 section 718.112, Florida Statutes, are amended to read:
287 718.112 Bylaws.—
288 (2) REQUIRED PROVISIONS.—The bylaws shall provide for the
289 following and, if they do not do so, shall be deemed to include
290 the following:
291 (d) Unit owner meetings.—
292 1. An annual meeting of the unit owners shall be held at
293 the location provided in the association bylaws and, if the
294 bylaws are silent as to the location, the meeting shall be held
295 within 45 miles of the condominium property. However, such
296 distance requirement does not apply to an association governing
297 a timeshare condominium.
298 2. Unless the bylaws provide otherwise, a vacancy on the
299 board caused by the expiration of a director’s term shall be
300 filled by electing a new board member, and the election must be
301 by secret ballot. An election is not required if the number of
302 vacancies equals or exceeds the number of candidates. For
303 purposes of this paragraph, the term “candidate” means an
304 eligible person who has timely submitted the written notice, as
305 described in sub-subparagraph 4.a., of his or her intention to
306 become a candidate. Except in a timeshare condominium, or if the
307 staggered term of a board member does not expire until a later
308 annual meeting, or if all members’ terms would otherwise expire
309 but there are no candidates, the terms of all board members
310 expire at the annual meeting, and such members may stand for
311 reelection unless prohibited by the bylaws. If the bylaws or
312 articles of incorporation permit staggered terms of no more than
313 2 years and upon approval of a majority of the total voting
314 interests, the association board members may serve 2-year
315 staggered terms. If the number of board members whose terms
316 expire at the annual meeting equals or exceeds the number of
317 candidates, the candidates become members of the board effective
318 upon the adjournment of the annual meeting. Unless the bylaws
319 provide otherwise, any remaining vacancies shall be filled by
320 the affirmative vote of the majority of the directors making up
321 the newly constituted board even if the directors constitute
322 less than a quorum or there is only one director. In a
323 condominium association of more than 10 units or in a
324 condominium association that does not include timeshare units or
325 timeshare interests, coowners of a unit may not serve as members
326 of the board of directors at the same time unless they own more
327 than one unit or unless there are not enough eligible candidates
328 to fill the vacancies on the board at the time of the vacancy.
329 Any unit owner desiring to be a candidate for board membership
330 must comply with sub-subparagraph 4.a. and must be eligible to
331 be a candidate to serve on the board of directors at the time of
332 the deadline for submitting a notice of intent to run in order
333 to have his or her name listed as a proper candidate on the
334 ballot or to serve on the board. A person who has been suspended
335 or removed by the division under this chapter, or who is
336 delinquent in the payment of any monetary obligation due to the
337 association fee, fine, or special or regular assessment as
338 provided in paragraph (n), is not eligible to be a candidate for
339 board membership and may not be listed on the ballot. A person
340 who has been convicted of any felony in this state or in a
341 United States District or Territorial Court, or who has been
342 convicted of any offense in another jurisdiction which would be
343 considered a felony if committed in this state, is not eligible
344 for board membership unless such felon’s civil rights have been
345 restored for at least 5 years as of the date such person seeks
346 election to the board. The validity of an action by the board is
347 not affected if it is later determined that a board member is
348 ineligible for board membership due to having been convicted of
349 a felony.
350 3. The bylaws must provide the method of calling meetings
351 of unit owners, including annual meetings. Written notice must
352 include an agenda, must be mailed, hand delivered, or
353 electronically transmitted to each unit owner at least 14 days
354 before the annual meeting, and must be posted in a conspicuous
355 place on the condominium property at least 14 continuous days
356 before the annual meeting. Upon notice to the unit owners, the
357 board shall, by duly adopted rule, designate a specific location
358 on the condominium property or association property where all
359 notices of unit owner meetings shall be posted. This requirement
360 does not apply if there is no condominium property or
361 association property for posting notices. In lieu of, or in
362 addition to, the physical posting of meeting notices, the
363 association may, by reasonable rule, adopt a procedure for
364 conspicuously posting and repeatedly broadcasting the notice and
365 the agenda on a closed-circuit cable television system serving
366 the condominium association. However, if broadcast notice is
367 used in lieu of a notice posted physically on the condominium
368 property, the notice and agenda must be broadcast at least four
369 times every broadcast hour of each day that a posted notice is
370 otherwise required under this section. If broadcast notice is
371 provided, the notice and agenda must be broadcast in a manner
372 and for a sufficient continuous length of time so as to allow an
373 average reader to observe the notice and read and comprehend the
374 entire content of the notice and the agenda. Unless a unit owner
375 waives in writing the right to receive notice of the annual
376 meeting, such notice must be hand delivered, mailed, or
377 electronically transmitted to each unit owner. Notice for
378 meetings and notice for all other purposes must be mailed to
379 each unit owner at the address last furnished to the association
380 by the unit owner, or hand delivered to each unit owner.
381 However, if a unit is owned by more than one person, the
382 association must provide notice to the address that the
383 developer identifies for that purpose and thereafter as one or
384 more of the owners of the unit advise the association in
385 writing, or if no address is given or the owners of the unit do
386 not agree, to the address provided on the deed of record. An
387 officer of the association, or the manager or other person
388 providing notice of the association meeting, must provide an
389 affidavit or United States Postal Service certificate of
390 mailing, to be included in the official records of the
391 association affirming that the notice was mailed or hand
392 delivered in accordance with this provision.
393 4. The members of the board shall be elected by written
394 ballot or voting machine. Proxies may not be used in electing
395 the board in general elections or elections to fill vacancies
396 caused by recall, resignation, or otherwise, unless otherwise
397 provided in this chapter. This subparagraph does not apply to an
398 association governing a timeshare condominium.
399 a. At least 60 days before a scheduled election, the
400 association shall mail, deliver, or electronically transmit, by
401 separate association mailing or included in another association
402 mailing, delivery, or transmission, including regularly
403 published newsletters, to each unit owner entitled to a vote, a
404 first notice of the date of the election. Any unit owner or
405 other eligible person desiring to be a candidate for the board
406 must give written notice of his or her intent to be a candidate
407 to the association at least 40 days before a scheduled election.
408 Together with the written notice and agenda as set forth in
409 subparagraph 3., the association shall mail, deliver, or
410 electronically transmit a second notice of the election to all
411 unit owners entitled to vote, together with a ballot that lists
412 all candidates. Upon request of a candidate, an information
413 sheet, no larger than 81/2 inches by 11 inches, which must be
414 furnished by the candidate at least 35 days before the election,
415 must be included with the mailing, delivery, or transmission of
416 the ballot, with the costs of mailing, delivery, or electronic
417 transmission and copying to be borne by the association. The
418 association is not liable for the contents of the information
419 sheets prepared by the candidates. In order to reduce costs, the
420 association may print or duplicate the information sheets on
421 both sides of the paper. The division shall by rule establish
422 voting procedures consistent with this sub-subparagraph,
423 including rules establishing procedures for giving notice by
424 electronic transmission and rules providing for the secrecy of
425 ballots. Elections shall be decided by a plurality of ballots
426 cast. There is no quorum requirement; however, at least 20
427 percent of the eligible voters must cast a ballot in order to
428 have a valid election. A unit owner may not permit any other
429 person to vote his or her ballot, and any ballots improperly
430 cast are invalid. A unit owner who violates this provision may
431 be fined by the association in accordance with s. 718.303. A
432 unit owner who needs assistance in casting the ballot for the
433 reasons stated in s. 101.051 may obtain such assistance. The
434 regular election must occur on the date of the annual meeting.
435 Notwithstanding this sub-subparagraph, an election is not
436 required unless more candidates file notices of intent to run or
437 are nominated than board vacancies exist.
438 b. Within 90 days after being elected or appointed to the
439 board, each newly elected or appointed director shall certify in
440 writing to the secretary of the association that he or she has
441 read the association’s declaration of condominium, articles of
442 incorporation, bylaws, and current written policies; that he or
443 she will work to uphold such documents and policies to the best
444 of his or her ability; and that he or she will faithfully
445 discharge his or her fiduciary responsibility to the
446 association’s members. In lieu of this written certification,
447 within 90 days after being elected or appointed to the board,
448 the newly elected or appointed director may submit a certificate
449 of having satisfactorily completed the educational curriculum
450 administered by a division-approved condominium education
451 provider within 1 year before or 90 days after the date of
452 election or appointment. The written certification or
453 educational certificate is valid and does not have to be
454 resubmitted as long as the director serves on the board without
455 interruption. A director who fails to timely file the written
456 certification or educational certificate is suspended from
457 service on the board until he or she complies with this sub
458 subparagraph. The board may temporarily fill the vacancy during
459 the period of suspension. The secretary shall cause the
460 association to retain a director’s written certification or
461 educational certificate for inspection by the members for 5
462 years after a director’s election or the duration of the
463 director’s uninterrupted tenure, whichever is longer. Failure to
464 have such written certification or educational certificate on
465 file does not affect the validity of any board action.
466 c. Any challenge to the election process must be commenced
467 within 60 days after the election results are announced.
468 5. Any approval by unit owners called for by this chapter
469 or the applicable declaration or bylaws, including, but not
470 limited to, the approval requirement in s. 718.111(8), must be
471 made at a duly noticed meeting of unit owners and is subject to
472 all requirements of this chapter or the applicable condominium
473 documents relating to unit owner decisionmaking, except that
474 unit owners may take action by written agreement, without
475 meetings, on matters for which action by written agreement
476 without meetings is expressly allowed by the applicable bylaws
477 or declaration or any law that provides for such action.
478 6. Unit owners may waive notice of specific meetings if
479 allowed by the applicable bylaws or declaration or any law. If
480 authorized by the bylaws, notice of meetings of the board of
481 administration, unit owner meetings, except unit owner meetings
482 called to recall board members under paragraph (j), and
483 committee meetings may be given by electronic transmission to
484 unit owners who consent to receive notice by electronic
485 transmission.
486 7. Unit owners have the right to participate in meetings of
487 unit owners with reference to all designated agenda items.
488 However, the association may adopt reasonable rules governing
489 the frequency, duration, and manner of unit owner participation.
490 8. A unit owner may tape record or videotape a meeting of
491 the unit owners subject to reasonable rules adopted by the
492 division.
493 9. Unless otherwise provided in the bylaws, any vacancy
494 occurring on the board before the expiration of a term may be
495 filled by the affirmative vote of the majority of the remaining
496 directors, even if the remaining directors constitute less than
497 a quorum, or by the sole remaining director. In the alternative,
498 a board may hold an election to fill the vacancy, in which case
499 the election procedures must conform to sub-subparagraph 4.a.
500 unless the association governs 10 units or fewer and has opted
501 out of the statutory election process, in which case the bylaws
502 of the association control. Unless otherwise provided in the
503 bylaws, a board member appointed or elected under this section
504 shall fill the vacancy for the unexpired term of the seat being
505 filled. Filling vacancies created by recall is governed by
506 paragraph (j) and rules adopted by the division.
507 10. This chapter does not limit the use of general or
508 limited proxies, require the use of general or limited proxies,
509 or require the use of a written ballot or voting machine for any
510 agenda item or election at any meeting of a timeshare
511 condominium association.
512
513 Notwithstanding subparagraph (b)2. and sub-subparagraph 4.a., an
514 association of 10 or fewer units may, by affirmative vote of a
515 majority of the total voting interests, provide for different
516 voting and election procedures in its bylaws, which may be by a
517 proxy specifically delineating the different voting and election
518 procedures. The different voting and election procedures may
519 provide for elections to be conducted by limited or general
520 proxy.
521 (j) Recall of board members.—Subject to the provisions of
522 s. 718.301, any member of the board of administration may be
523 recalled and removed from office with or without cause by the
524 vote or agreement in writing by a majority of all the voting
525 interests. A special meeting of the unit owners to recall a
526 member or members of the board of administration may be called
527 by 10 percent of the voting interests giving notice of the
528 meeting as required for a meeting of unit owners, and the notice
529 shall state the purpose of the meeting. Electronic transmission
530 may not be used as a method of giving notice of a meeting called
531 in whole or in part for this purpose.
532 1. If the recall is approved by a majority of all voting
533 interests by a vote at a meeting, the recall will be effective
534 as provided in this paragraph herein. The board shall duly
535 notice and hold a board meeting within 5 full business days
536 after of the adjournment of the unit owner meeting to recall one
537 or more board members. At the meeting, the board shall either
538 certify the recall, in which case such member or members shall
539 be recalled effective immediately and shall turn over to the
540 board within 5 full business days any and all records and
541 property of the association in their possession, or shall
542 proceed as set forth in subparagraph 3.
543 2. If the proposed recall is by an agreement in writing by
544 a majority of all voting interests, the agreement in writing or
545 a copy thereof shall be served on the association by certified
546 mail or by personal service in the manner authorized by chapter
547 48 and the Florida Rules of Civil Procedure. The board of
548 administration shall duly notice and hold a meeting of the board
549 within 5 full business days after receipt of the agreement in
550 writing. At the meeting, the board shall either certify the
551 written agreement to recall a member or members of the board, in
552 which case such member or members shall be recalled effective
553 immediately and shall turn over to the board within 5 full
554 business days any and all records and property of the
555 association in their possession, or proceed as described in
556 subparagraph 3.
557 3. If the board determines not to certify the written
558 agreement to recall a member or members of the board, or does
559 not certify the recall by a vote at a meeting, the board shall,
560 within 5 full business days after the meeting, file with the
561 division a petition for arbitration pursuant to the procedures
562 in s. 718.1255. For the purposes of this section, the unit
563 owners who voted at the meeting or who executed the agreement in
564 writing shall constitute one party under the petition for
565 arbitration. If the arbitrator certifies the recall as to any
566 member or members of the board, the recall will be effective
567 upon mailing of the final order of arbitration to the
568 association. If the association fails to comply with the order
569 of the arbitrator, the division may take action pursuant to s.
570 718.501. Any member or members so recalled shall deliver to the
571 board any and all records of the association in their possession
572 within 5 full business days after of the effective date of the
573 recall.
574 4. If the board fails to duly notice and hold a board
575 meeting within 5 full business days after of service of an
576 agreement in writing or within 5 full business days after of the
577 adjournment of the unit owner recall meeting, the recall shall
578 be deemed effective and the board members so recalled shall
579 immediately turn over to the board any and all records and
580 property of the association.
581 5. If the board fails to duly notice and hold the required
582 meeting or fails to file the required petition, the unit owner
583 representative may file a petition pursuant to s. 718.1255
584 challenging the board’s failure to act. The petition must be
585 filed within 60 days after the expiration of the applicable 5
586 full-business-day period. The review of a petition under this
587 subparagraph is limited to the sufficiency of service on the
588 board and the facial validity of the written agreement or
589 ballots filed.
590 6.5. If a vacancy occurs on the board as a result of a
591 recall or removal and less than a majority of the board members
592 are removed, the vacancy may be filled by the affirmative vote
593 of a majority of the remaining directors, notwithstanding any
594 provision to the contrary contained in this subsection. If
595 vacancies occur on the board as a result of a recall and a
596 majority or more of the board members are removed, the vacancies
597 shall be filled in accordance with procedural rules to be
598 adopted by the division, which rules need not be consistent with
599 this subsection. The rules must provide procedures governing the
600 conduct of the recall election as well as the operation of the
601 association during the period after a recall but before prior to
602 the recall election.
603 7. A board member who has been recalled may file a petition
604 pursuant to s. 718.1255 challenging the validity of the recall.
605 The petition must be filed within 60 days after the recall is
606 deemed certified. The association and the unit owner
607 representative shall be named as the respondents.
608 8. The division may not accept for filing a recall
609 petition, whether filed pursuant to subparagraph 1.,
610 subparagraph 2., subparagraph 5., or subparagraph 7. and
611 regardless of whether the recall was certified, when there are
612 60 or fewer days until the scheduled reelection of the board
613 member sought to be recalled or when 60 or fewer days have
614 elapsed since the election of the board member sought to be
615 recalled.
616 Section 5. Subsection (5) of section 718.113, Florida
617 Statutes, is amended to read:
618 718.113 Maintenance; limitation upon improvement; display
619 of flag; hurricane shutters and protection; display of religious
620 decorations.—
621 (5) Each board of administration shall adopt hurricane
622 shutter specifications for each building within each condominium
623 operated by the association which shall include color, style,
624 and other factors deemed relevant by the board. All
625 specifications adopted by the board must comply with the
626 applicable building code.
627 (a) The board may, subject to the provisions of s.
628 718.3026, and the approval of a majority of voting interests of
629 the condominium, install hurricane shutters, impact glass, or
630 other code-compliant windows or doors, or other types of code
631 compliant hurricane protection that comply complies with or
632 exceed exceeds the applicable building code. However, a vote of
633 the owners is not required if the maintenance, repair, and
634 replacement of hurricane shutters, impact glass, or other code
635 compliant windows or doors, or other types of code-compliant
636 hurricane protection are the responsibility of the association
637 pursuant to the declaration of condominium. If hurricane
638 protection or laminated glass or window film architecturally
639 designed to function as hurricane protection that which complies
640 with or exceeds the current applicable building code has been
641 previously installed, the board may not install hurricane
642 shutters, hurricane protection, or impact glass, or other code
643 compliant windows or doors, or other types of code-compliant
644 hurricane protection except upon approval by a majority vote of
645 the voting interests.
646 (b) The association is responsible for the maintenance,
647 repair, and replacement of the hurricane shutters, impact glass,
648 code-compliant windows or doors, or other types of code
649 compliant hurricane protection authorized by this subsection if
650 such property hurricane shutters or other hurricane protection
651 is the responsibility of the association pursuant to the
652 declaration of condominium. If the hurricane shutters, impact
653 glass, code-compliant windows or doors, or other types of code
654 compliant hurricane protection authorized by this subsection are
655 the responsibility of the unit owners pursuant to the
656 declaration of condominium, the maintenance, repair, and
657 replacement of such items are the responsibility of the unit
658 owner.
659 (c) The board may operate shutters, impact glass, code
660 compliant windows or doors, or other types of code-compliant
661 hurricane protection installed pursuant to this subsection
662 without permission of the unit owners only if such operation is
663 necessary to preserve and protect the condominium property and
664 association property. The installation, replacement, operation,
665 repair, and maintenance of such shutters, impact glass, code
666 compliant windows or doors, or other types of code-compliant
667 hurricane protection in accordance with the procedures set forth
668 in this paragraph are not a material alteration to the common
669 elements or association property within the meaning of this
670 section.
671 (d) Notwithstanding any other provision in the condominium
672 documents, if approval is required by the documents, a board may
673 not refuse to approve the installation or replacement of
674 hurricane shutters, impact glass, code-compliant windows or
675 doors, or other types of code-compliant hurricane protection by
676 a unit owner conforming to the specifications adopted by the
677 board.
678 Section 6. Paragraph (e) of subsection (1) of section
679 718.115, Florida Statutes, is amended to read:
680 718.115 Common expenses and common surplus.—
681 (1)
682 (e) The expense of installation, replacement, operation,
683 repair, and maintenance of hurricane shutters, impact glass,
684 code-compliant windows or doors, or other types of code
685 compliant hurricane protection by the board pursuant to s.
686 718.113(5) constitutes shall constitute a common expense as
687 defined herein and shall be collected as provided in this
688 section if the association is responsible for the maintenance,
689 repair, and replacement of the hurricane shutters, impact glass,
690 code-compliant windows or doors, or other types of code
691 compliant hurricane protection pursuant to the declaration of
692 condominium. However, if the maintenance, repair, and
693 replacement of the hurricane shutters, impact glass, code
694 compliant windows or doors, or other types of code-compliant
695 hurricane protection are is the responsibility of the unit
696 owners pursuant to the declaration of condominium, the cost of
697 the installation of the hurricane shutters, impact glass, code
698 compliant windows or doors, or other types of code-compliant
699 hurricane protection is shall not be a common expense and, but
700 shall be charged individually to the unit owners based on the
701 cost of installation of the hurricane shutters, impact glass,
702 code-compliant windows or doors, or other types of code
703 compliant hurricane protection appurtenant to the unit.
704 Notwithstanding the provisions of s. 718.116(9), and regardless
705 of whether or not the declaration requires the association or
706 unit owners to maintain, repair, or replace hurricane shutters,
707 impact glass, code-compliant windows or doors, or other types of
708 code-compliant hurricane protection, a unit owner who has
709 previously installed hurricane shutters in accordance with s.
710 718.113(5) that comply with the current applicable building code
711 shall receive a credit when the shutters are installed; a unit
712 owner who has previously installed impact glass or code
713 compliant windows or doors that comply with the current
714 applicable building code shall receive a credit when the impact
715 glass or code-compliant windows or doors are installed; and a
716 unit owner who has installed, other types of code-compliant
717 hurricane protection that comply with the current applicable
718 building code shall receive a credit when the same type of other
719 code-compliant hurricane protection is installed, and the or
720 laminated glass architecturally designed to function as
721 hurricane protection, which hurricane shutters or other
722 hurricane protection or laminated glass comply with the current
723 applicable building code, shall receive a credit shall be equal
724 to the pro rata portion of the assessed installation cost
725 assigned to each unit. However, such unit owner remains shall
726 remain responsible for the pro rata share of expenses for
727 hurricane shutters, impact glass, code-compliant windows or
728 doors, or other types of code-compliant hurricane protection
729 installed on common elements and association property by the
730 board pursuant to s. 718.113(5), and remains shall remain
731 responsible for a pro rata share of the expense of the
732 replacement, operation, repair, and maintenance of such
733 shutters, impact glass, code-compliant windows or doors, or
734 other types of code-compliant hurricane protection.
735 Section 7. Paragraph (a) of subsection (3) of section
736 718.303, Florida Statutes, is amended to read:
737 718.303 Obligations of owners and occupants; remedies.—
738 (3) The association may levy reasonable fines for the
739 failure of the owner of the unit or its occupant, licensee, or
740 invitee to comply with any provision of the declaration, the
741 association bylaws, or reasonable rules of the association. A
742 fine may not become a lien against a unit. A fine may be levied
743 on the basis of each day of a continuing violation, with a
744 single notice and opportunity for hearing. However, the fine may
745 not exceed $100 per violation, or $1,000 in the aggregate.
746 (a) An association may suspend, for a reasonable period of
747 time, the right of a unit owner, or a unit owner’s tenant,
748 guest, or invitee, to use the common elements, common
749 facilities, or any other association property for failure to
750 comply with any provision of the declaration, the association
751 bylaws, or reasonable rules of the association. This paragraph
752 does not apply to limited common elements intended to be used
753 only by that unit, common elements needed to access the unit,
754 utility services provided to the unit, parking spaces, or
755 elevators.
756 Section 8. Subsection (1) of section 718.403, Florida
757 Statutes, is amended to read:
758 718.403 Phase condominiums.—
759 (1) Notwithstanding the provisions of s. 718.110, a
760 developer may develop a condominium in phases, if the original
761 declaration of condominium submitting the initial phase to
762 condominium ownership or an amendment to the declaration which
763 has been approved by all of the unit owners and unit mortgagees
764 provides for and describes in detail all anticipated phases; the
765 impact, if any, which the completion of subsequent phases would
766 have upon the initial phase; and the time period (which may not
767 exceed 7 years from the date of recording the declaration of
768 condominium) within which all phases must be added to the
769 condominium and comply with the requirements of this section and
770 at the end of which the right to add additional phases expires.
771 (a) All phases must be added to the condominium within 7
772 years after the date of recording the original declaration of
773 condominium submitting the initial phase to condominium
774 ownership unless an amendment extending the 7-year period is
775 approved by the unit owners.
776 (b) An amendment to extend the 7-year period requires the
777 approval of the owners necessary to amend the declaration of
778 condominium consistent with s. 718.110(1)(a). An extension of
779 the 7-year period may be submitted for approval only during the
780 last 3 years of the 7-year period.
781 (c) An amendment must describe the period within which all
782 phases must be added to the condominium and such period may not
783 exceed 10 years after the date of recording the original
784 declaration of condominium submitting the initial phase to
785 condominium ownership.
786 (d) Notwithstanding s. 718.110, an amendment extending the
787 7-year period is not an amendment subject to s. 718.110(4).
788 Section 9. Section 718.406, Florida Statutes, is created to
789 read:
790 718.406 Condominiums created within condominium parcels.—
791 (1) Unless otherwise expressed in the declaration of
792 condominium, if a condominium is created within a condominium
793 parcel, the term:
794 (a) “Primary condominium” means any condominium that is not
795 a secondary condominium and contains one or more subdivided
796 parcels.
797 (b) “Primary condominium association” means any entity that
798 operates a primary condominium.
799 (c) “Primary condominium declaration” means the instrument
800 or instruments by which a primary condominium is created, as
801 they are from time to time amended.
802 (d) “Secondary condominium” means one or more condominium
803 parcels that have been submitted to condominium ownership
804 pursuant to a secondary condominium declaration.
805 (e) “Secondary condominium association” means any entity
806 responsible for the operation of a secondary condominium.
807 (f) “Secondary condominium declaration” means the
808 instrument or instruments by which a secondary condominium is
809 created, as they are from time to time amended.
810 (g) “Secondary unit” means a unit that is part of a
811 secondary condominium.
812 (h) “Subdivided parcel” means a condominium parcel in a
813 primary condominium that has been submitted to condominium
814 ownership pursuant to a secondary condominium declaration.
815 (2) Unless otherwise provided in the primary condominium
816 declaration, if a condominium parcel is a subdivided parcel, the
817 secondary condominium association responsible for operating the
818 secondary condominium upon the subdivided parcel shall act on
819 behalf of all of the unit owners of secondary units in the
820 secondary condominium and shall exercise all rights of the
821 secondary unit owners in the primary condominium association,
822 other than the right of possession of the secondary unit. The
823 secondary condominium association shall designate a
824 representative who shall cast the vote of the subdivided parcel
825 in the primary condominium association and, if no person is
826 designated by the secondary condominium association to cast such
827 vote, the vote shall be cast by the president of the secondary
828 condominium association or the designee of the president.
829 (3) Unless otherwise provided in the primary condominium
830 declaration as originally recorded, no secondary condominium may
831 be created upon any condominium parcel in the primary
832 condominium, and no amendment to the primary condominium
833 declaration may permit secondary condominiums to be created upon
834 parcels in the primary condominium, unless the record owners of
835 a majority of the condominium parcels join in the execution of
836 the amendment.
837 (4) If the primary condominium declaration permits the
838 creation of a secondary condominium and a condominium parcel in
839 the primary condominium is being submitted for condominium
840 ownership to create a secondary condominium upon the primary
841 condominium parcel, the approval of the board of administration
842 of the primary condominium association is required in order to
843 create the secondary condominium on the primary condominium
844 parcel. Unless otherwise provided in the primary condominium
845 declaration, the owners of condominium parcels in the primary
846 condominium that will not be part of the proposed secondary
847 condominium and the holders of liens upon such primary
848 condominium parcels shall not have approval rights regarding the
849 creation of the secondary condominium or the contents of the
850 secondary condominium declaration being submitted. Only the
851 board of administration of the primary condominium association,
852 the owner of the subdivided parcel, and the holders of liens
853 upon the subdivided parcel shall have approval rights regarding
854 the creation of the secondary condominium and the contents of
855 the secondary condominium declaration. In order for the
856 recording of the secondary condominium declaration to be
857 effective to create the secondary condominium, the board of
858 administration of the primary condominium association, the owner
859 of the subdivided parcel, and all holders of liens on the
860 subdivided parcel must execute the secondary condominium
861 declaration for the purpose of evidencing their approval.
862 (5) An owner of a secondary unit is subject to both the
863 primary condominium declaration and the secondary condominium
864 declaration.
865 (6) The primary condominium association may provide
866 insurance required by s. 718.111(11) for common elements and
867 other improvements within the secondary condominium if the
868 primary condominium declaration permits the primary condominium
869 association to provide such insurance for the benefit of the
870 condominium property included in the subdivided parcel, in lieu
871 of such insurance being provided by the secondary condominium
872 association.
873 (7) Unless otherwise provided in the primary condominium
874 declaration, the board of administration of the primary
875 condominium association may adopt hurricane shutter or hurricane
876 protection specifications for each building within which
877 subdivided parcels are located and govern any subdivided parcels
878 in the primary condominium.
879 (8) Any unit owner of, or holder of a first mortgage on, a
880 secondary unit may register such unit owner’s or mortgagee’s
881 interest in the secondary unit with the primary condominium
882 association by delivering written notice to the primary
883 condominium association. Once registered, the primary
884 condominium association must provide written notice to such
885 secondary unit owner and his, her, or its first mortgagee at
886 least 30 days before instituting any foreclosure action against
887 the subdivided parcel in which the secondary unit owner and his,
888 her, or its first mortgagee hold an interest for failure of the
889 subdivided parcel owner to pay any assessments or other amounts
890 due to the primary condominium association. A foreclosure action
891 against a subdivided parcel is not effective without an
892 affidavit indicating that written notice of the foreclosure was
893 timely sent to the names and addresses of secondary unit owners
894 and first mortgagees registered with the primary condominium
895 association pursuant to this subsection. The registered
896 secondary unit owner or mortgagee has a right to pay the
897 proportionate amount of the delinquent assessment attributable
898 to the secondary unit in which the registered unit owner or
899 mortgagee holds an interest. Upon such payment, the primary
900 condominium association is obligated to promptly modify or
901 partially release the record of lien on the primary condominium
902 association so that the lien no longer encumbers such secondary
903 unit. Alternatively, a registered secondary unit owner or
904 mortgagee may pay the amount of all delinquent assessments
905 attributed to the subdivided parcel and seek reimbursement for
906 all such amounts paid and all costs incurred from the secondary
907 condominium association, including, without limitation, the
908 costs of collection other than the share allocable to the
909 secondary unit on behalf of which such payment was made.
910 (9) In the event of a conflict between the primary
911 condominium declaration and the secondary condominium
912 declaration, the primary condominium declaration controls.
913 (10) All common expenses due to the primary condominium
914 association with respect to a subdivided parcel are a common
915 expense of the secondary condominium association and shall be
916 collected by the secondary condominium association from its
917 members and paid to the primary condominium association.
918 Section 10. Subsection (2) of section 718.5011, Florida
919 Statutes, is amended to read:
920 718.5011 Ombudsman; appointment; administration.—
921 (2) The Governor shall appoint the ombudsman. The ombudsman
922 must be an attorney admitted to practice before the Florida
923 Supreme Court and shall serve at the pleasure of the Governor. A
924 vacancy in the office shall be filled in the same manner as the
925 original appointment. An officer or full-time employee of the
926 ombudsman’s office may not actively engage in any other business
927 or profession that directly or indirectly relates to or
928 conflicts with his or her work in the ombudsman’s office; serve
929 as the representative of any political party, executive
930 committee, or other governing body of a political party; serve
931 as an executive, officer, or employee of a political party;
932 receive remuneration for activities on behalf of any candidate
933 for public office; or engage in soliciting votes or other
934 activities on behalf of a candidate for public office. The
935 ombudsman or any employee of his or her office may not become a
936 candidate for election to public office unless he or she first
937 resigns from his or her office or employment.
938 Section 11. Paragraphs (b) and (c) of subsection (2) of
939 section 719.104, Florida Statutes, are amended to read:
940 719.104 Cooperatives; access to units; records; financial
941 reports; assessments; purchase of leases.—
942 (2) OFFICIAL RECORDS.—
943 (b) The official records of the association shall be
944 maintained within the state. The records of the association
945 shall be made available to a unit owner within 5 working days
946 after receipt of written request by the board or its designee.
947 This paragraph may be complied with by having a copy of the
948 official records available for inspection or copying on the
949 cooperative property. An association shall allow a member or his
950 or her authorized representative to use a portable device,
951 including a smartphone, tablet, portable scanner, or any other
952 technology capable of scanning or taking photographs, to make an
953 electronic copy of the official records in lieu of the
954 association’s providing the member or his or her authorized
955 representative with a copy of such records. The association may
956 not charge a member or his or her authorized representative for
957 the use of a portable device.
958 (c) The official records of the association shall be open
959 to inspection by any association member or the authorized
960 representative of such member at all reasonable times. Failure
961 to permit inspection of the association records as provided in
962 this subsection herein entitles any person prevailing in an
963 enforcement action to recover reasonable attorney attorney’s
964 fees from the person in control of the records who, directly or
965 indirectly, knowingly denies access to the records for
966 inspection. The right to inspect the records includes the right
967 to make or obtain copies, at the reasonable expense, if any, of
968 the association member. The association may adopt reasonable
969 rules regarding the frequency, time, location, notice, and
970 manner of record inspections and copying. The failure of an
971 association to provide the records within 10 working days after
972 receipt of a written request creates a rebuttable presumption
973 that the association willfully failed to comply with this
974 paragraph. A unit owner who is denied access to official records
975 is entitled to the actual damages or minimum damages for the
976 association’s willful failure to comply with this paragraph. The
977 minimum damages shall be $50 per calendar day up to 10 days, the
978 calculation to begin on the 11th day after receipt of the
979 written request. The association shall maintain an adequate
980 number of copies of the declaration, articles of incorporation,
981 bylaws, and rules, and all amendments to each of the foregoing,
982 as well as the question and answer sheet provided for in s.
983 719.504, on the cooperative property to ensure their
984 availability to unit owners and prospective purchasers, and may
985 charge its actual costs for preparing and furnishing these
986 documents to those requesting the same. Notwithstanding the
987 provisions of this paragraph, the following records shall not be
988 accessible to unit owners:
989 1. Any record protected by the lawyer-client privilege as
990 provided in s. 90.502; protected by the work-product privilege,
991 including any record A record that was prepared by an
992 association attorney or prepared at the attorney’s express
993 direction; reflecting that reflects a mental impression,
994 conclusion, litigation strategy, or legal theory of the attorney
995 or the association; or that was prepared exclusively for civil
996 or criminal litigation or for adversarial administrative
997 proceedings or in anticipation of imminent civil or criminal
998 litigation or imminent adversarial administrative proceedings,
999 until the conclusion of the litigation or adversarial
1000 administrative proceedings.
1001 2. Information obtained by an association in connection
1002 with the approval of the lease, sale, or other transfer of a
1003 unit.
1004 3. Medical records of unit owners.
1005 4. Personnel records of association employees, including,
1006 but not limited to, disciplinary, payroll, health, and insurance
1007 records. For purposes of this subparagraph, the term “personnel
1008 records” does not include written employment agreements with an
1009 association employee or budgetary or financial records that
1010 indicate the compensation paid to an association employee.
1011 5. Social security numbers, driver license numbers, credit
1012 card numbers, e-mail addresses, telephone numbers, emergency
1013 contact information, any addresses of a unit owner other than
1014 addresses provided to fulfill the association’s notice
1015 requirements, and other personal identifying information of any
1016 person, excluding the person’s name, unit designation, mailing
1017 address, and property address.
1018 6. Any electronic security measures that are used by the
1019 association to safeguard data, including passwords.
1020 7. The software and operating system used by the
1021 association which allows manipulation of data, even if the owner
1022 owns a copy of the same software used by the association. The
1023 data is part of the official records of the association.
1024 Section 12. Subsection (7) is added to section 719.1055,
1025 Florida Statutes, to read:
1026 719.1055 Amendment of cooperative documents; alteration and
1027 acquisition of property.—
1028 (7) The Legislature finds that the procurement of mortgagee
1029 consent to amendments that do not affect the rights or interests
1030 of mortgagees is an unreasonable and substantial logistical and
1031 financial burden on the unit owners and that there is a
1032 compelling state interest in enabling the members of an
1033 association to approve amendments to the association’s
1034 cooperative documents through legal means. Accordingly, and
1035 notwithstanding any provision of this subsection to the
1036 contrary:
1037 (a) As to any mortgage recorded on or after July 1, 2013,
1038 any provision in the association’s cooperative documents that
1039 requires the consent or joinder of some or all mortgagees of
1040 units or any other portion of the association’s common areas to
1041 amend the association’s cooperative documents or for any other
1042 matter is enforceable only as to amendments to the association’s
1043 cooperative documents that adversely affect the priority of the
1044 mortgagee’s lien or the mortgagee’s rights to foreclose its lien
1045 or that otherwise materially affect the rights and interests of
1046 the mortgagees.
1047 (b) As to mortgages recorded before July 1, 2013, any
1048 existing provisions in the association’s cooperative documents
1049 requiring mortgagee consent are enforceable.
1050 (c) In securing consent or joinder, the association is
1051 entitled to rely upon the public records to identify the holders
1052 of outstanding mortgages. The association may use the address
1053 provided in the original recorded mortgage document, unless
1054 there is a different address for the holder of the mortgage in a
1055 recorded assignment or modification of the mortgage, which
1056 recorded assignment or modification must reference the official
1057 records book and page on which the original mortgage was
1058 recorded. Once the association has identified the recorded
1059 mortgages of record, the association shall, in writing, request
1060 of each unit owner whose unit is encumbered by a mortgage of
1061 record any information that the owner has in his or her
1062 possession regarding the name and address of the person to whom
1063 mortgage payments are currently being made. Notice shall be sent
1064 to such person if the address provided in the original recorded
1065 mortgage document is different from the name and address of the
1066 mortgagee or assignee of the mortgage as shown by the public
1067 record. The association is deemed to have complied with this
1068 requirement by making the written request of the unit owners
1069 required under this paragraph. Any notices required to be sent
1070 to the mortgagees under this paragraph shall be sent to all
1071 available addresses provided to the association.
1072 (d) Any notice to the mortgagees required under paragraph
1073 (c) may be sent by a method that establishes proof of delivery,
1074 and any mortgagee who fails to respond within 60 days after the
1075 date of mailing is deemed to have consented to the amendment.
1076 (e) For those amendments requiring mortgagee consent on or
1077 after July 1, 2013, in the event mortgagee consent is provided
1078 other than by properly recorded joinder, such consent shall be
1079 evidenced by affidavit of the association recorded in the public
1080 records of the county in which the declaration is recorded.
1081 (f) Any amendment adopted without the required consent of a
1082 mortgagee is voidable only by a mortgagee who was entitled to
1083 notice and an opportunity to consent. An action to void an
1084 amendment is subject to the statute of limitations beginning 5
1085 years after the date of discovery as to the amendments described
1086 in paragraph (a) and 5 years after the date of recordation of
1087 the certificate of amendment for all other amendments. This
1088 paragraph applies to all mortgages, regardless of the date of
1089 recordation of the mortgage.
1090 Section 13. Paragraphs (c), (d), and (f) of subsection (1)
1091 of section 719.106, Florida Statutes, are amended to read:
1092 719.106 Bylaws; cooperative ownership.—
1093 (1) MANDATORY PROVISIONS.—The bylaws or other cooperative
1094 documents shall provide for the following, and if they do not,
1095 they shall be deemed to include the following:
1096 (c) Board of administration meetings.—Meetings of the board
1097 of administration at which a quorum of the members is present
1098 shall be open to all unit owners. Any unit owner may tape record
1099 or videotape meetings of the board of administration. The right
1100 to attend such meetings includes the right to speak at such
1101 meetings with reference to all designated agenda items. The
1102 division shall adopt reasonable rules governing the tape
1103 recording and videotaping of the meeting. The association may
1104 adopt reasonable written rules governing the frequency,
1105 duration, and manner of unit owner statements. Adequate notice
1106 of all meetings shall be posted in a conspicuous place upon the
1107 cooperative property at least 48 continuous hours preceding the
1108 meeting, except in an emergency. Any item not included on the
1109 notice may be taken up on an emergency basis by at least a
1110 majority plus one of the members of the board. Such emergency
1111 action shall be noticed and ratified at the next regular meeting
1112 of the board. However, written notice of any meeting at which
1113 nonemergency special assessments, or at which amendment to rules
1114 regarding unit use, will be considered shall be mailed,
1115 delivered, or electronically transmitted to the unit owners and
1116 posted conspicuously on the cooperative property not less than
1117 14 days before prior to the meeting. Evidence of compliance with
1118 this 14-day notice shall be made by an affidavit executed by the
1119 person providing the notice and filed among the official records
1120 of the association. Upon notice to the unit owners, the board
1121 shall by duly adopted rule designate a specific location on the
1122 cooperative property upon which all notices of board meetings
1123 shall be posted. In lieu of or in addition to the physical
1124 posting of notice of any meeting of the board of administration
1125 on the cooperative property, the association may, by reasonable
1126 rule, adopt a procedure for conspicuously posting and repeatedly
1127 broadcasting the notice and the agenda on a closed-circuit cable
1128 television system serving the cooperative association. However,
1129 if broadcast notice is used in lieu of a notice posted
1130 physically on the cooperative property, the notice and agenda
1131 must be broadcast at least four times every broadcast hour of
1132 each day that a posted notice is otherwise required under this
1133 section. When broadcast notice is provided, the notice and
1134 agenda must be broadcast in a manner and for a sufficient
1135 continuous length of time so as to allow an average reader to
1136 observe the notice and read and comprehend the entire content of
1137 the notice and the agenda. Notice of any meeting in which
1138 regular assessments against unit owners are to be considered for
1139 any reason shall specifically contain a statement that
1140 assessments will be considered and the nature of any such
1141 assessments. Meetings of a committee to take final action on
1142 behalf of the board or to make recommendations to the board
1143 regarding the association budget are subject to the provisions
1144 of this paragraph. Meetings of a committee that does not take
1145 final action on behalf of the board or make recommendations to
1146 the board regarding the association budget are subject to the
1147 provisions of this section, unless those meetings are exempted
1148 from this section by the bylaws of the association.
1149 Notwithstanding any other law to the contrary, the requirement
1150 that board meetings and committee meetings be open to the unit
1151 owners does not apply is inapplicable to board or committee
1152 meetings held for the purpose of discussing personnel matters or
1153 meetings between the board or a committee and the association’s
1154 attorney, with respect to proposed or pending litigation, if
1155 when the meeting is held for the purpose of seeking or rendering
1156 legal advice.
1157 (d) Shareholder meetings.—There shall be an annual meeting
1158 of the shareholders. All members of the board of administration
1159 shall be elected at the annual meeting unless the bylaws provide
1160 for staggered election terms or for their election at another
1161 meeting. Any unit owner desiring to be a candidate for board
1162 membership must comply with subparagraph 1. The bylaws must
1163 provide the method for calling meetings, including annual
1164 meetings. Written notice, which must incorporate an
1165 identification of agenda items, shall be given to each unit
1166 owner at least 14 days before the annual meeting and posted in a
1167 conspicuous place on the cooperative property at least 14
1168 continuous days preceding the annual meeting. Upon notice to the
1169 unit owners, the board must by duly adopted rule designate a
1170 specific location on the cooperative property upon which all
1171 notice of unit owner meetings are posted. In lieu of or in
1172 addition to the physical posting of the meeting notice, the
1173 association may, by reasonable rule, adopt a procedure for
1174 conspicuously posting and repeatedly broadcasting the notice and
1175 the agenda on a closed-circuit cable television system serving
1176 the cooperative association. However, if broadcast notice is
1177 used in lieu of a posted notice, the notice and agenda must be
1178 broadcast at least four times every broadcast hour of each day
1179 that a posted notice is otherwise required under this section.
1180 If broadcast notice is provided, the notice and agenda must be
1181 broadcast in a manner and for a sufficient continuous length of
1182 time to allow an average reader to observe the notice and read
1183 and comprehend the entire content of the notice and the agenda.
1184 Unless a unit owner waives in writing the right to receive
1185 notice of the annual meeting, the notice of the annual meeting
1186 must be sent by mail, hand delivered, or electronically
1187 transmitted to each unit owner. An officer of the association
1188 must provide an affidavit or United States Postal Service
1189 certificate of mailing, to be included in the official records
1190 of the association, affirming that notices of the association
1191 meeting were mailed, hand delivered, or electronically
1192 transmitted, in accordance with this provision, to each unit
1193 owner at the address last furnished to the association.
1194 1. The board of administration shall be elected by written
1195 ballot or voting machine. A proxy may not be used in electing
1196 the board of administration in general elections or elections to
1197 fill vacancies caused by recall, resignation, or otherwise
1198 unless otherwise provided in this chapter.
1199 a. At least 60 days before a scheduled election, the
1200 association shall mail, deliver, or transmit, whether by
1201 separate association mailing, delivery, or electronic
1202 transmission or included in another association mailing,
1203 delivery, or electronic transmission, including regularly
1204 published newsletters, to each unit owner entitled to vote, a
1205 first notice of the date of the election. Any unit owner or
1206 other eligible person desiring to be a candidate for the board
1207 of administration must give written notice to the association at
1208 least 40 days before a scheduled election. Together with the
1209 written notice and agenda as set forth in this section, the
1210 association shall mail, deliver, or electronically transmit a
1211 second notice of election to all unit owners entitled to vote,
1212 together with a ballot that which lists all candidates. Upon
1213 request of a candidate, the association shall include an
1214 information sheet, no larger than 81/2 inches by 11 inches,
1215 which must be furnished by the candidate at least 35 days before
1216 the election, to be included with the mailing, delivery, or
1217 electronic transmission of the ballot, with the costs of
1218 mailing, delivery, or transmission and copying to be borne by
1219 the association. The association is not liable for the contents
1220 of the information sheets provided by the candidates. In order
1221 to reduce costs, the association may print or duplicate the
1222 information sheets on both sides of the paper. The division
1223 shall by rule establish voting procedures consistent with this
1224 subparagraph, including rules establishing procedures for giving
1225 notice by electronic transmission and rules providing for the
1226 secrecy of ballots. Elections shall be decided by a plurality of
1227 those ballots cast. There is no quorum requirement. However, at
1228 least 20 percent of the eligible voters must cast a ballot in
1229 order to have a valid election. A unit owner may not permit any
1230 other person to vote his or her ballot, and any such ballots
1231 improperly cast are invalid. A unit owner who needs assistance
1232 in casting the ballot for the reasons stated in s. 101.051 may
1233 obtain assistance in casting the ballot. Any unit owner
1234 violating this provision may be fined by the association in
1235 accordance with s. 719.303. The regular election must occur on
1236 the date of the annual meeting. This subparagraph does not apply
1237 to timeshare cooperatives. Notwithstanding this subparagraph, an
1238 election and balloting are not required unless more candidates
1239 file a notice of intent to run or are nominated than vacancies
1240 exist on the board. Any challenge to the election process must
1241 be commenced within 60 days after the election results are
1242 announced.
1243 b. Within 90 days after being elected or appointed to the
1244 board, each new director shall certify in writing to the
1245 secretary of the association that he or she has read the
1246 association’s bylaws, articles of incorporation, proprietary
1247 lease, and current written policies; that he or she will work to
1248 uphold such documents and policies to the best of his or her
1249 ability; and that he or she will faithfully discharge his or her
1250 fiduciary responsibility to the association’s members. Within 90
1251 days after being elected or appointed to the board, in lieu of
1252 this written certification, the newly elected or appointed
1253 director may submit a certificate of having satisfactorily
1254 completed the educational curriculum administered by an
1255 education provider as approved by the division pursuant to the
1256 requirements established in chapter 718 within 1 year before or
1257 90 days after the date of election or appointment. The
1258 educational certificate is valid and does not have to be
1259 resubmitted as long as the director serves on the board without
1260 interruption. A director who fails to timely file the written
1261 certification or educational certificate is suspended from
1262 service on the board until he or she complies with this sub-
1263 subparagraph. The board may temporarily fill the vacancy during
1264 the period of suspension. The secretary of the association shall
1265 cause the association to retain a director’s written
1266 certification or educational certificate for inspection by the
1267 members for 5 years after a director’s election or the duration
1268 of the director’s uninterrupted tenure, whichever is longer.
1269 Failure to have such written certification or educational
1270 certificate on file does not affect the validity of any board
1271 action.
1272 2. Any approval by unit owners called for by this chapter,
1273 or the applicable cooperative documents, must be made at a duly
1274 noticed meeting of unit owners and is subject to this chapter or
1275 the applicable cooperative documents relating to unit owner
1276 decisionmaking, except that unit owners may take action by
1277 written agreement, without meetings, on matters for which action
1278 by written agreement without meetings is expressly allowed by
1279 the applicable cooperative documents or law which provides for
1280 the unit owner action.
1281 3. Unit owners may waive notice of specific meetings if
1282 allowed by the applicable cooperative documents or law. If
1283 authorized by the bylaws, notice of meetings of the board of
1284 administration, shareholder meetings, except shareholder
1285 meetings called to recall board members under paragraph (f), and
1286 committee meetings may be given by electronic transmission to
1287 unit owners who consent to receive notice by electronic
1288 transmission.
1289 4. Unit owners have the right to participate in meetings of
1290 unit owners with reference to all designated agenda items.
1291 However, the association may adopt reasonable rules governing
1292 the frequency, duration, and manner of unit owner participation.
1293 5. Any unit owner may tape record or videotape meetings of
1294 the unit owners subject to reasonable rules adopted by the
1295 division.
1296 6. Unless otherwise provided in the bylaws, a vacancy
1297 occurring on the board before the expiration of a term may be
1298 filled by the affirmative vote of the majority of the remaining
1299 directors, even if the remaining directors constitute less than
1300 a quorum, or by the sole remaining director. In the alternative,
1301 a board may hold an election to fill the vacancy, in which case
1302 the election procedures must conform to the requirements of
1303 subparagraph 1. unless the association has opted out of the
1304 statutory election process, in which case the bylaws of the
1305 association control. Unless otherwise provided in the bylaws, a
1306 board member appointed or elected under this subparagraph shall
1307 fill the vacancy for the unexpired term of the seat being
1308 filled. Filling vacancies created by recall is governed by
1309 paragraph (f) and rules adopted by the division.
1310
1311 Notwithstanding subparagraphs (b)2. and (d)1., an association
1312 may, by the affirmative vote of a majority of the total voting
1313 interests, provide for a different voting and election procedure
1314 in its bylaws, which vote may be by a proxy specifically
1315 delineating the different voting and election procedures. The
1316 different voting and election procedures may provide for
1317 elections to be conducted by limited or general proxy.
1318 (f) Recall of board members.—Subject to the provisions of
1319 s. 719.301, any member of the board of administration may be
1320 recalled and removed from office with or without cause by the
1321 vote or agreement in writing by a majority of all the voting
1322 interests. A special meeting of the voting interests to recall
1323 any member of the board of administration may be called by 10
1324 percent of the unit owners giving notice of the meeting as
1325 required for a meeting of unit owners, and the notice shall
1326 state the purpose of the meeting. Electronic transmission may
1327 not be used as a method of giving notice of a meeting called in
1328 whole or in part for this purpose.
1329 1. If the recall is approved by a majority of all voting
1330 interests by a vote at a meeting, the recall shall be effective
1331 as provided in this paragraph herein. The board shall duly
1332 notice and hold a board meeting within 5 full business days
1333 after of the adjournment of the unit owner meeting to recall one
1334 or more board members. At the meeting, the board shall either
1335 certify the recall, in which case such member or members shall
1336 be recalled effective immediately and shall turn over to the
1337 board within 5 full business days any and all records and
1338 property of the association in their possession, or shall
1339 proceed as set forth in subparagraph 3.
1340 2. If the proposed recall is by an agreement in writing by
1341 a majority of all voting interests, the agreement in writing or
1342 a copy thereof shall be served on the association by certified
1343 mail or by personal service in the manner authorized by chapter
1344 48 and the Florida Rules of Civil Procedure. The board of
1345 administration shall duly notice and hold a meeting of the board
1346 within 5 full business days after receipt of the agreement in
1347 writing. At the meeting, the board shall either certify the
1348 written agreement to recall members of the board, in which case
1349 such members shall be recalled effective immediately and shall
1350 turn over to the board, within 5 full business days, any and all
1351 records and property of the association in their possession, or
1352 proceed as described in subparagraph 3.
1353 3. If the board determines not to certify the written
1354 agreement to recall members of the board, or does not certify
1355 the recall by a vote at a meeting, the board shall, within 5
1356 full business days after the board meeting, file with the
1357 division a petition for binding arbitration pursuant to the
1358 procedures of s. 719.1255. For purposes of this paragraph, the
1359 unit owners who voted at the meeting or who executed the
1360 agreement in writing shall constitute one party under the
1361 petition for arbitration. If the arbitrator certifies the recall
1362 as to any member of the board, the recall shall be effective
1363 upon mailing of the final order of arbitration to the
1364 association. If the association fails to comply with the order
1365 of the arbitrator, the division may take action pursuant to s.
1366 719.501. Any member so recalled shall deliver to the board any
1367 and all records and property of the association in the member’s
1368 possession within 5 full business days after of the effective
1369 date of the recall.
1370 4. If the board fails to duly notice and hold a board
1371 meeting within 5 full business days after of service of an
1372 agreement in writing or within 5 full business days after of the
1373 adjournment of the unit owner recall meeting, the recall shall
1374 be deemed effective and the board members so recalled shall
1375 immediately turn over to the board any and all records and
1376 property of the association.
1377 5. If the board fails to duly notice and hold the required
1378 meeting or fails to file the required petition, the unit owner
1379 representative may file a petition pursuant to s. 719.1255
1380 challenging the board’s failure to act. The petition must be
1381 filed within 60 days after the expiration of the applicable 5
1382 full-business-day period. The review of a petition under this
1383 subparagraph is limited to the sufficiency of service on the
1384 board and the facial validity of the written agreement or
1385 ballots filed.
1386 6.5. If a vacancy occurs on the board as a result of a
1387 recall and less than a majority of the board members are
1388 removed, the vacancy may be filled by the affirmative vote of a
1389 majority of the remaining directors, notwithstanding any
1390 provision to the contrary contained in this chapter. If
1391 vacancies occur on the board as a result of a recall and a
1392 majority or more of the board members are removed, the vacancies
1393 shall be filled in accordance with procedural rules to be
1394 adopted by the division, which rules need not be consistent with
1395 this chapter. The rules must provide procedures governing the
1396 conduct of the recall election as well as the operation of the
1397 association during the period after a recall but before prior to
1398 the recall election.
1399 7. A board member who has been recalled may file a petition
1400 pursuant to s. 719.1255 challenging the validity of the recall.
1401 The petition must be filed within 60 days after the recall is
1402 deemed certified. The association and the unit owner
1403 representative shall be named as the respondents.
1404 8. The division may not accept for filing a recall
1405 petition, whether filed pursuant to subparagraph 1.,
1406 subparagraph 2., subparagraph 5., or subparagraph 7. and
1407 regardless of whether the recall was certified, when there are
1408 60 or fewer days until the scheduled reelection of the board
1409 member sought to be recalled or when 60 or fewer days have not
1410 elapsed since the election of the board member sought to be
1411 recalled.
1412 Section 14. Paragraph (a) of subsection (3) of section
1413 719.303, Florida Statutes, is amended to read:
1414 719.303 Obligations of owners.—
1415 (3) The association may levy reasonable fines for failure
1416 of the unit owner or the unit’s occupant, licensee, or invitee
1417 to comply with any provision of the cooperative documents or
1418 reasonable rules of the association. A fine may not become a
1419 lien against a unit. A fine may be levied on the basis of each
1420 day of a continuing violation, with a single notice and
1421 opportunity for hearing. However, the fine may not exceed $100
1422 per violation, or $1,000 in the aggregate.
1423 (a) An association may suspend, for a reasonable period of
1424 time, the right of a unit owner, or a unit owner’s tenant,
1425 guest, or invitee, to use the common elements, common
1426 facilities, or any other association property for failure to
1427 comply with any provision of the cooperative documents or
1428 reasonable rules of the association. This paragraph does not
1429 apply to limited common elements intended to be used only by
1430 that unit, common elements needed to access the unit, utility
1431 services provided to the unit, parking spaces, or elevators.
1432 Section 15. Paragraph (k) of subsection (1) of section
1433 719.501, Florida Statutes, is amended to read:
1434 719.501 Powers and duties of Division of Florida
1435 Condominiums, Timeshares, and Mobile Homes.—
1436 (1) The Division of Florida Condominiums, Timeshares, and
1437 Mobile Homes of the Department of Business and Professional
1438 Regulation, referred to as the “division” in this part, in
1439 addition to other powers and duties prescribed by chapter 718,
1440 has the power to enforce and ensure compliance with this chapter
1441 and adopted rules relating to the development, construction,
1442 sale, lease, ownership, operation, and management of residential
1443 cooperative units. In performing its duties, the division shall
1444 have the following powers and duties:
1445 (k) The division shall provide training and educational
1446 programs for cooperative association board members and unit
1447 owners. The training may, in the division’s discretion, include
1448 web-based electronic media, and live training and seminars in
1449 various locations throughout the state. The division may review
1450 and approve education and training programs for board members
1451 and unit owners offered by providers and shall maintain a
1452 current list of approved programs and providers and make such
1453 list available to board members and unit owners in a reasonable
1454 and cost-effective manner.
1455 Section 16. Subsection (5), paragraphs (a) and (b) of
1456 subsection (7), and subsection (10) of section 720.303, Florida
1457 Statutes, are amended to read:
1458 720.303 Association powers and duties; meetings of board;
1459 official records; budgets; financial reporting; association
1460 funds; recalls.—
1461 (5) INSPECTION AND COPYING OF RECORDS.—The official records
1462 shall be maintained within the state and must be open to
1463 inspection and available for photocopying by members or their
1464 authorized agents at reasonable times and places within 10
1465 business days after receipt of a written request for access.
1466 This subsection may be complied with by having a copy of the
1467 official records available for inspection or copying in the
1468 community. If the association has a photocopy machine available
1469 where the records are maintained, it must provide parcel owners
1470 with copies on request during the inspection if the entire
1471 request is limited to no more than 25 pages. An association
1472 shall allow a member or his or her authorized representative to
1473 use a portable device, including a smartphone, tablet, portable
1474 scanner, or any other technology capable of scanning or taking
1475 photographs, to make an electronic copy of the official records
1476 in lieu of the association’s providing the member or his or her
1477 authorized representative with a copy of such records. The
1478 association may not charge a member or his or her authorized
1479 representative for the use of a portable device.
1480 (a) The failure of an association to provide access to the
1481 records within 10 business days after receipt of a written
1482 request submitted by certified mail, return receipt requested,
1483 creates a rebuttable presumption that the association willfully
1484 failed to comply with this subsection.
1485 (b) A member who is denied access to official records is
1486 entitled to the actual damages or minimum damages for the
1487 association’s willful failure to comply with this subsection.
1488 The minimum damages are to be $50 per calendar day up to 10
1489 days, the calculation to begin on the 11th business day after
1490 receipt of the written request.
1491 (c) The association may adopt reasonable written rules
1492 governing the frequency, time, location, notice, records to be
1493 inspected, and manner of inspections, but may not require a
1494 parcel owner to demonstrate any proper purpose for the
1495 inspection, state any reason for the inspection, or limit a
1496 parcel owner’s right to inspect records to less than one 8-hour
1497 business day per month. The association may impose fees to cover
1498 the costs of providing copies of the official records,
1499 including, without limitation, the costs of copying. The
1500 association may charge up to 50 cents per page for copies made
1501 on the association’s photocopier. If the association does not
1502 have a photocopy machine available where the records are kept,
1503 or if the records requested to be copied exceed 25 pages in
1504 length, the association may have copies made by an outside
1505 vendor or association management company personnel and may
1506 charge the actual cost of copying, including any reasonable
1507 costs involving personnel fees and charges at an hourly rate for
1508 vendor or employee time to cover administrative costs to the
1509 vendor or association. The association shall maintain an
1510 adequate number of copies of the recorded governing documents,
1511 to ensure their availability to members and prospective members.
1512 Notwithstanding this paragraph, the following records are not
1513 accessible to members or parcel owners:
1514 1. Any record protected by the lawyer-client privilege as
1515 described in s. 90.502 and any record protected by the work
1516 product privilege, including, but not limited to, a record
1517 prepared by an association attorney or prepared at the
1518 attorney’s express direction which reflects a mental impression,
1519 conclusion, litigation strategy, or legal theory of the attorney
1520 or the association and which was prepared exclusively for civil
1521 or criminal litigation or for adversarial administrative
1522 proceedings or which was prepared in anticipation of such
1523 litigation or proceedings until the conclusion of the litigation
1524 or proceedings.
1525 2. Information obtained by an association in connection
1526 with the approval of the lease, sale, or other transfer of a
1527 parcel.
1528 3. Personnel records of association or management company
1529 the association’s employees, including, but not limited to,
1530 disciplinary, payroll, health, and insurance records. For
1531 purposes of this subparagraph, the term “personnel records” does
1532 not include written employment agreements with an association or
1533 management company employee or budgetary or financial records
1534 that indicate the compensation paid to an association or
1535 management company employee.
1536 4. Medical records of parcel owners or community residents.
1537 5. Social security numbers, driver driver’s license
1538 numbers, credit card numbers, electronic mailing addresses,
1539 telephone numbers, facsimile numbers, emergency contact
1540 information, any addresses for a parcel owner other than as
1541 provided for association notice requirements, and other personal
1542 identifying information of any person, excluding the person’s
1543 name, parcel designation, mailing address, and property address.
1544 However, an owner may consent in writing to the disclosure of
1545 protected information described in this subparagraph. The
1546 association is not liable for the disclosure of information that
1547 is protected under this subparagraph if the information is
1548 included in an official record of the association and is
1549 voluntarily provided by an owner and not requested by the
1550 association.
1551 6. Any electronic security measure that is used by the
1552 association to safeguard data, including passwords.
1553 7. The software and operating system used by the
1554 association which allows the manipulation of data, even if the
1555 owner owns a copy of the same software used by the association.
1556 The data is part of the official records of the association.
1557 (d) The association or its authorized agent is not required
1558 to provide a prospective purchaser or lienholder with
1559 information about the residential subdivision or the association
1560 other than information or documents required by this chapter to
1561 be made available or disclosed. The association or its
1562 authorized agent may charge a reasonable fee to the prospective
1563 purchaser or lienholder or the current parcel owner or member
1564 for providing good faith responses to requests for information
1565 by or on behalf of a prospective purchaser or lienholder, other
1566 than that required by law, if the fee does not exceed $150 plus
1567 the reasonable cost of photocopying and any attorney attorney’s
1568 fees incurred by the association in connection with the
1569 response.
1570 (7) FINANCIAL REPORTING.—Within 90 days after the end of
1571 the fiscal year, or annually on the date provided in the bylaws,
1572 the association shall prepare and complete, or contract with a
1573 third party for the preparation and completion of, a financial
1574 report for the preceding fiscal year. Within 21 days after the
1575 final financial report is completed by the association or
1576 received from the third party, but not later than 120 days after
1577 the end of the fiscal year or other date as provided in the
1578 bylaws, the association shall, within the time limits set forth
1579 in subsection (5), provide each member with a copy of the annual
1580 financial report or a written notice that a copy of the
1581 financial report is available upon request at no charge to the
1582 member. Financial reports shall be prepared as follows:
1583 (a) An association that meets the criteria of this
1584 paragraph shall prepare or cause to be prepared a complete set
1585 of financial statements in accordance with generally accepted
1586 accounting principles as adopted by the Board of Accountancy.
1587 The financial statements shall be based upon the association’s
1588 total annual revenues, as follows:
1589 1. An association with total annual revenues of $200,000
1590 $100,000 or more, but less than $300,000 $200,000, shall prepare
1591 compiled financial statements.
1592 2. An association with total annual revenues of at least
1593 $300,000 $200,000, but less than $500,000 $400,000, shall
1594 prepare reviewed financial statements.
1595 3. An association with total annual revenues of $500,000
1596 $400,000 or more shall prepare audited financial statements.
1597 (b)1. An association with total annual revenues of less
1598 than $200,000 $100,000 shall prepare a report of cash receipts
1599 and expenditures.
1600 2. An association in a community of fewer than 50 parcels,
1601 regardless of the association’s annual revenues, may prepare a
1602 report of cash receipts and expenditures in lieu of financial
1603 statements required by paragraph (a) unless the governing
1604 documents provide otherwise.
1605 3. A report of cash receipts and disbursement must disclose
1606 the amount of receipts by accounts and receipt classifications
1607 and the amount of expenses by accounts and expense
1608 classifications, including, but not limited to, the following,
1609 as applicable: costs for security, professional, and management
1610 fees and expenses; taxes; costs for recreation facilities;
1611 expenses for refuse collection and utility services; expenses
1612 for lawn care; costs for building maintenance and repair;
1613 insurance costs; administration and salary expenses; and
1614 reserves if maintained by the association.
1615 (10) RECALL OF DIRECTORS.—
1616 (a)1. Regardless of any provision to the contrary contained
1617 in the governing documents, subject to the provisions of s.
1618 720.307 regarding transition of association control, any member
1619 of the board of directors may be recalled and removed from
1620 office with or without cause by a majority of the total voting
1621 interests.
1622 2. When the governing documents, including the declaration,
1623 articles of incorporation, or bylaws, provide that only a
1624 specific class of members is entitled to elect a board director
1625 or directors, only that class of members may vote to recall
1626 those board directors so elected.
1627 (b)1. Board directors may be recalled by an agreement in
1628 writing or by written ballot without a membership meeting. The
1629 agreement in writing or the written ballots, or a copy thereof,
1630 shall be served on the association by certified mail or by
1631 personal service in the manner authorized by chapter 48 and the
1632 Florida Rules of Civil Procedure.
1633 2. The board shall duly notice and hold a meeting of the
1634 board within 5 full business days after receipt of the agreement
1635 in writing or written ballots. At the meeting, the board shall
1636 either certify the written ballots or written agreement to
1637 recall a director or directors of the board, in which case such
1638 director or directors shall be recalled effective immediately
1639 and shall turn over to the board within 5 full business days any
1640 and all records and property of the association in their
1641 possession, or proceed as described in paragraph (d).
1642 3. When it is determined by the department pursuant to
1643 binding arbitration proceedings that an initial recall effort
1644 was defective, written recall agreements or written ballots used
1645 in the first recall effort and not found to be defective may be
1646 reused in one subsequent recall effort. However, in no event is
1647 a written agreement or written ballot valid for more than 120
1648 days after it has been signed by the member.
1649 4. Any rescission or revocation of a member’s written
1650 recall ballot or agreement must be in writing and, in order to
1651 be effective, must be delivered to the association before the
1652 association is served with the written recall agreements or
1653 ballots.
1654 5. The agreement in writing or ballot shall list at least
1655 as many possible replacement directors as there are directors
1656 subject to the recall, when at least a majority of the board is
1657 sought to be recalled; the person executing the recall
1658 instrument may vote for as many replacement candidates as there
1659 are directors subject to the recall.
1660 (c)1. If the declaration, articles of incorporation, or
1661 bylaws specifically provide, the members may also recall and
1662 remove a board director or directors by a vote taken at a
1663 meeting. If so provided in the governing documents, a special
1664 meeting of the members to recall a director or directors of the
1665 board of administration may be called by 10 percent of the
1666 voting interests giving notice of the meeting as required for a
1667 meeting of members, and the notice shall state the purpose of
1668 the meeting. Electronic transmission may not be used as a method
1669 of giving notice of a meeting called in whole or in part for
1670 this purpose.
1671 2. The board shall duly notice and hold a board meeting
1672 within 5 full business days after the adjournment of the member
1673 meeting to recall one or more directors. At the meeting, the
1674 board shall certify the recall, in which case such member or
1675 members shall be recalled effective immediately and shall turn
1676 over to the board within 5 full business days any and all
1677 records and property of the association in their possession, or
1678 shall proceed as set forth in paragraph subparagraph (d).
1679 (d) If the board determines not to certify the written
1680 agreement or written ballots to recall a director or directors
1681 of the board or does not certify the recall by a vote at a
1682 meeting, the board shall, within 5 full business days after the
1683 meeting, file with the department a petition for binding
1684 arbitration pursuant to the applicable procedures in ss.
1685 718.112(2)(j) and 718.1255 and the rules adopted thereunder. For
1686 the purposes of this section, the members who voted at the
1687 meeting or who executed the agreement in writing shall
1688 constitute one party under the petition for arbitration. If the
1689 arbitrator certifies the recall as to any director or directors
1690 of the board, the recall will be effective upon mailing of the
1691 final order of arbitration to the association. The director or
1692 directors so recalled shall deliver to the board any and all
1693 records of the association in their possession within 5 full
1694 business days after the effective date of the recall.
1695 (e) If a vacancy occurs on the board as a result of a
1696 recall and less than a majority of the board directors are
1697 removed, the vacancy may be filled by the affirmative vote of a
1698 majority of the remaining directors, notwithstanding any
1699 provision to the contrary contained in this subsection or in the
1700 association documents. If vacancies occur on the board as a
1701 result of a recall and a majority or more of the board directors
1702 are removed, the vacancies shall be filled by members voting in
1703 favor of the recall; if removal is at a meeting, any vacancies
1704 shall be filled by the members at the meeting. If the recall
1705 occurred by agreement in writing or by written ballot, members
1706 may vote for replacement directors in the same instrument in
1707 accordance with procedural rules adopted by the division, which
1708 rules need not be consistent with this subsection.
1709 (f) If the board fails to duly notice and hold a board
1710 meeting within 5 full business days after service of an
1711 agreement in writing or within 5 full business days after the
1712 adjournment of the member recall meeting, the recall shall be
1713 deemed effective and the board directors so recalled shall
1714 immediately turn over to the board all records and property of
1715 the association.
1716 (g) If the board fails to duly notice and hold the required
1717 meeting or fails to file the required petition, the unit owner
1718 representative may file a petition pursuant to s. 718.1255
1719 challenging the board’s failure to act. The petition must be
1720 filed within 60 days after the expiration of the applicable 5
1721 full-business-day period. The review of a petition under this
1722 paragraph is limited to the sufficiency of service on the board
1723 and the facial validity of the written agreement or ballots
1724 filed.
1725 (h)(g) If a director who is removed fails to relinquish his
1726 or her office or turn over records as required under this
1727 section, the circuit court in the county where the association
1728 maintains its principal office may, upon the petition of the
1729 association, summarily order the director to relinquish his or
1730 her office and turn over all association records upon
1731 application of the association.
1732 (i)(h) The minutes of the board meeting at which the board
1733 decides whether to certify the recall are an official
1734 association record. The minutes must record the date and time of
1735 the meeting, the decision of the board, and the vote count taken
1736 on each board member subject to the recall. In addition, when
1737 the board decides not to certify the recall, as to each vote
1738 rejected, the minutes must identify the parcel number and the
1739 specific reason for each such rejection.
1740 (j)(i) When the recall of more than one board director is
1741 sought, the written agreement, ballot, or vote at a meeting
1742 shall provide for a separate vote for each board director sought
1743 to be recalled.
1744 (k) A board member who has been recalled may file a
1745 petition pursuant to ss. 718.112(2)(j) and 718.1255 and the
1746 rules adopted challenging the validity of the recall. The
1747 petition must be filed within 60 days after the recall is deemed
1748 certified. The association and the unit owner representative
1749 shall be named as respondents.
1750 (l) The division may not accept for filing a recall
1751 petition, whether filed pursuant to paragraph (b), paragraph
1752 (c), paragraph (g), or paragraph (k) and regardless of whether
1753 the recall was certified, when there are 60 or fewer days until
1754 the scheduled reelection of the board member sought to be
1755 recalled or when 60 or fewer days have not elapsed since the
1756 election of the board member sought to be recalled.
1757 Section 17. Subsection (2) of section 720.305, Florida
1758 Statutes, is amended to read:
1759 720.305 Obligations of members; remedies at law or in
1760 equity; levy of fines and suspension of use rights.—
1761 (2) The association may levy reasonable fines of up to $100
1762 per violation against any member or any member’s tenant, guest,
1763 or invitee for the failure of the owner of the parcel or its
1764 occupant, licensee, or invitee to comply with any provision of
1765 the declaration, the association bylaws, or reasonable rules of
1766 the association. A fine may be levied for each day of a
1767 continuing violation, with a single notice and opportunity for
1768 hearing, except that the fine may not exceed $1,000 in the
1769 aggregate unless otherwise provided in the governing documents.
1770 A fine of less than $1,000 may not become a lien against a
1771 parcel. In any action to recover a fine, the prevailing party is
1772 entitled to reasonable attorney attorney’s fees and costs from
1773 the nonprevailing party as determined by the court.
1774 (a) An association may suspend, for a reasonable period of
1775 time, the right of a member, or a member’s tenant, guest, or
1776 invitee, to use common areas and facilities for the failure of
1777 the owner of the parcel or its occupant, licensee, or invitee to
1778 comply with any provision of the declaration, the association
1779 bylaws, or reasonable rules of the association. This paragraph
1780 does not apply to that portion of common areas used to provide
1781 access or utility services to the parcel. A suspension may not
1782 impair the right of an owner or tenant of a parcel to have
1783 vehicular and pedestrian ingress to and egress from the parcel,
1784 including, but not limited to, the right to park.
1785 (b) A fine or suspension may not be imposed without at
1786 least 14 days’ notice to the person sought to be fined or
1787 suspended and an opportunity for a hearing before a committee of
1788 at least three members appointed by the board who are not
1789 officers, directors, or employees of the association, or the
1790 spouse, parent, child, brother, or sister of an officer,
1791 director, or employee. If the committee, by majority vote, does
1792 not approve a proposed fine or suspension, it may not be
1793 imposed. If the association imposes a fine or suspension, the
1794 association must provide written notice of such fine or
1795 suspension by mail or hand delivery to the parcel owner and, if
1796 applicable, to any tenant, licensee, or invitee of the parcel
1797 owner.
1798 Section 18. Paragraph (d) is added to subsection (1) of
1799 section 720.306, Florida Statutes, and subsection (6) and
1800 paragraph (a) of subsection (9) of that section are amended, to
1801 read:
1802 720.306 Meetings of members; voting and election
1803 procedures; amendments.—
1804 (1) QUORUM; AMENDMENTS.—
1805 (d) The Legislature finds that the procurement of mortgagee
1806 consent to amendments that do not affect the rights or interests
1807 of mortgagees is an unreasonable and substantial logistical and
1808 financial burden on the parcel owners and that there is a
1809 compelling state interest in enabling the members of an
1810 association to approve amendments to the association’s governing
1811 documents through legal means. Accordingly, and notwithstanding
1812 any provision of this paragraph to the contrary:
1813 1. As to any mortgage recorded on or after July 1, 2013,
1814 any provision in the association’s governing documents that
1815 requires the consent or joinder of some or all mortgagees of
1816 parcels or any other portion of the association’s common areas
1817 to amend the association’s governing documents or for any other
1818 matter is enforceable only as to amendments to the association’s
1819 governing documents that adversely affect the priority of the
1820 mortgagee’s lien or the mortgagee’s rights to foreclose its lien
1821 or that otherwise materially affect the rights and interests of
1822 the mortgagees.
1823 2. As to mortgages recorded before July 1, 2013, any
1824 existing provisions in the association’s governing documents
1825 requiring mortgagee consent are enforceable.
1826 3. In securing consent or joinder, the association is
1827 entitled to rely upon the public records to identify the holders
1828 of outstanding mortgages. The association may use the address
1829 provided in the original recorded mortgage document, unless
1830 there is a different address for the holder of the mortgage in a
1831 recorded assignment or modification of the mortgage, which
1832 recorded assignment or modification must reference the official
1833 records book and page on which the original mortgage was
1834 recorded. Once the association has identified the recorded
1835 mortgages of record, the association shall, in writing, request
1836 of each parcel owner whose parcel is encumbered by a mortgage of
1837 record any information that the owner has in his or her
1838 possession regarding the name and address of the person to whom
1839 mortgage payments are currently being made. Notice shall be sent
1840 to such person if the address provided in the original recorded
1841 mortgage document is different from the name and address of the
1842 mortgagee or assignee of the mortgage as shown by the public
1843 record. The association is deemed to have complied with this
1844 requirement by making the written request of the parcel owners
1845 required under this subparagraph. Any notices required to be
1846 sent to the mortgagees under this subparagraph shall be sent to
1847 all available addresses provided to the association.
1848 4. Any notice to the mortgagees required under subparagraph
1849 3. may be sent by a method that establishes proof of delivery,
1850 and any mortgagee who fails to respond within 60 days after the
1851 date of mailing is deemed to have consented to the amendment.
1852 5. For those amendments requiring mortgagee consent on or
1853 after July 1, 2013, in the event mortgagee consent is provided
1854 other than by properly recorded joinder, such consent shall be
1855 evidenced by affidavit of the association recorded in the public
1856 records of the county in which the declaration is recorded.
1857 6. Any amendment adopted without the required consent of a
1858 mortgagee is voidable only by a mortgagee who was entitled to
1859 notice and an opportunity to consent. An action to void an
1860 amendment is subject to the statute of limitations beginning 5
1861 years after the date of discovery as to the amendments described
1862 in subparagraph 1. and 5 years after the date of recordation of
1863 the certificate of amendment for all other amendments. This
1864 subparagraph applies to all mortgages, regardless of the date of
1865 recordation of the mortgage.
1866 (6) RIGHT TO SPEAK.—Members and parcel owners have the
1867 right to attend all membership meetings and to speak at any
1868 meeting with reference to all items opened for discussion or
1869 included on the agenda. Notwithstanding any provision to the
1870 contrary in the governing documents or any rules adopted by the
1871 board or by the membership, a member and a parcel owner have the
1872 right to speak for at least 3 minutes on any item, provided that
1873 the member or parcel owner submits a written request to speak
1874 prior to the meeting. The association may adopt written
1875 reasonable rules governing the frequency, duration, and other
1876 manner of member and parcel owner statements, which rules must
1877 be consistent with this subsection.
1878 (9)(a) ELECTIONS AND BOARD VACANCIES.—
1879 (a) Elections of directors must be conducted in accordance
1880 with the procedures set forth in the governing documents of the
1881 association. All members of the association are eligible to
1882 serve on the board of directors, and a member may nominate
1883 himself or herself as a candidate for the board at a meeting
1884 where the election is to be held or, if the election process
1885 allows voting by absentee ballot, in advance of the balloting.
1886 Except as otherwise provided in the governing documents, boards
1887 of directors must be elected by a plurality of the votes cast by
1888 eligible voters. Any challenge to the election process must be
1889 commenced within 60 days after the election results are
1890 announced.
1891 Section 19. This act shall take effect July 1, 2013.
1892
1893 ================= T I T L E A M E N D M E N T ================
1894 And the title is amended as follows:
1895 Delete everything before the enacting clause
1896 and insert:
1897 A bill to be entitled
1898 An act relating to residential properties; amending s.
1899 399.02, F.S.; exempting certain elevators from
1900 specific code update requirements; amending s.
1901 514.0115, F.S.; revising specified supervision and
1902 regulation exemptions for homeowners’ association
1903 swimming pools; amending s. 718.111, F.S.; revising
1904 requirements for an association’s approval of land
1905 purchases and recreational leases; revising
1906 reconstruction costs for which unit owners are
1907 responsible and authorizing the costs to be collected
1908 in a specified manner; requiring an association to
1909 repair or replace as a common expense certain
1910 condominium property damaged by an insurable event;
1911 requiring an association to allow a member or the
1912 member’s representative to use certain portable
1913 devices to make electronic copies of association
1914 records; prohibiting the association from charging the
1915 member or representative for using the portable
1916 device; revising requirements for the preparation of
1917 an association’s annual financial statement; amending
1918 s. 718.112, F.S.; revising terms of members of an
1919 association’s board of administrators and revising
1920 eligibility criteria for candidates; revising
1921 condominium unit owner meeting notice requirements;
1922 providing for nonapplicability to associations
1923 governing timeshare condominiums of certain provisions
1924 relating to elections of board members; revising
1925 recordkeeping requirements of a condominium
1926 association board; requiring commencement of
1927 challenges to an election within a specified period;
1928 providing requirements for challenging the failure of
1929 a board to duly notice and hold the required board
1930 meeting or to file the required petition for a recall;
1931 providing requirements for recalled board members to
1932 challenge the recall; prohibiting the Division of
1933 Florida Condominiums, Timeshares, and Mobile Homes of
1934 the Department of Business and Professional Regulation
1935 from accepting recall petitions for filing under
1936 certain circumstances; amending s. 718.113, F.S.;
1937 providing requirements for a condominium association
1938 board relating to the installation of hurricane
1939 shutters, impact glass, code-compliant windows or
1940 doors, and other types of code-compliant hurricane
1941 protection under certain circumstances; amending s.
1942 718.115, F.S.; conforming provisions to changes made
1943 by the act; amending s. 718.303, F.S.; revising
1944 provisions relating to imposing remedies against a
1945 noncompliant or delinquent condominium unit owner or
1946 member; amending s. 718.403, F.S.; providing
1947 requirements for the completion of phase condominiums;
1948 creating s. 718.406, F.S.; providing definitions;
1949 providing requirements for condominiums created within
1950 condominium parcels; providing for the establishment
1951 of primary condominium and secondary condominium
1952 units; providing requirements for association
1953 declarations; authorizing a primary condominium
1954 association to provide insurance and adopt hurricane
1955 shutter or hurricane protection specifications under
1956 certain conditions; providing requirements relating to
1957 assessments; providing for resolution of conflicts
1958 between primary condominium declarations and secondary
1959 condominium declarations; providing requirements
1960 relating to common expenses due the primary
1961 condominium association; amending s. 718.5011, F.S.;
1962 revising the restriction on officers and full-time
1963 employees of the ombudsman from engaging in other
1964 businesses or professions; amending s. 719.104, F.S.;
1965 requiring an association to allow a member or the
1966 member’s representative to use certain portable
1967 devices to make electronic copies of association
1968 records; prohibiting the association from charging the
1969 member or representative for using the portable
1970 device; specifying additional records that are not
1971 accessible to unit owners; amending s. 719.1055, F.S.;
1972 revising provisions relating to the amendment of
1973 cooperative documents; providing legislative findings
1974 and a finding of compelling state interest; providing
1975 criteria for consent or joinder to an amendment;
1976 requiring notice regarding proposed amendments to
1977 mortgagees; providing criteria for notification;
1978 providing for voiding certain amendments; amending s.
1979 719.106, F.S.; revising applicability of certain board
1980 of administration meeting requirements; requiring
1981 commencement of challenges to an election within a
1982 specified period; specifying certification or
1983 educational requirements for a newly elected or
1984 appointed cooperative board director; providing
1985 requirements for challenging the failure of a board to
1986 duly notice and hold the required board meeting or to
1987 file the required petition for a recall; providing
1988 requirements for recalled board members to challenge
1989 the recall; prohibiting the division from accepting
1990 recall petitions for filing under certain
1991 circumstances; providing education requirements for
1992 board members; amending s. 719.303, F.S.; revising
1993 provisions relating to imposing remedies against a
1994 noncompliant or delinquent cooperative unit owner or
1995 member; amending s. 719.501, F.S.; authorizing the
1996 division to provide training and educational programs
1997 for cooperative association board members and unit
1998 owners; amending s. 720.303, F.S.; requiring an
1999 association to allow a member or the member’s
2000 representative to use certain portable devices to make
2001 electronic copies of association records; prohibiting
2002 the association from charging the member or
2003 representative for using the portable device; revising
2004 requirements for the preparation of an association’s
2005 annual financial statement; revising the types of
2006 records that are not accessible to homeowners’
2007 association members and parcel owners; providing
2008 requirements for challenging the failure of a board to
2009 duly notice and hold the required board meeting or to
2010 file the required petition for a recall; providing
2011 requirements for recalled board members to challenge
2012 the recall; prohibiting the division from accepting
2013 recall petitions for filing under certain
2014 circumstances; amending s. 720.305, F.S.; revising
2015 provisions relating to imposing remedies against a
2016 noncompliant or delinquent homeowners’ association
2017 member and parcel owner; amending s. 720.306, F.S.;
2018 revising provisions relating to the amendment of
2019 homeowners’ association declarations; providing
2020 legislative findings and a finding of compelling state
2021 interest; providing criteria for consent or joinder to
2022 an amendment; requiring notice to mortgagees regarding
2023 proposed amendments; providing criteria for
2024 notification; providing for voiding certain
2025 amendments; revising provisions relating to right to
2026 speak at a homeowners’ association meeting; requiring
2027 commencement of challenges to an election within a
2028 specified period; providing an effective date.
