Bill Text: FL S0440 | 2014 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Condominiums

Spectrum: Slight Partisan Bill (? 2-1)

Status: (Passed) 2014-06-13 - Chapter No. 2014-74 [S0440 Detail]

Download: Florida-2014-S0440-Introduced.html

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       Florida Senate - 2014                                     SB 440
       
       
        
       By Senator Altman
       
       
       
       
       
       16-00483-14                                            2014440__
    1                        A bill to be entitled                      
    2         An act relating to condominiums; amending s. 718.112,
    3         F.S.; limiting the application of certain requirements
    4         relating to bylaws to residential condominiums and
    5         their associations and boards; providing an effective
    6         date.
    7          
    8  Be It Enacted by the Legislature of the State of Florida:
    9  
   10         Section 1. Paragraphs (a), (b), (d), (k), and (l) of
   11  subsection (2) of section 718.112, Florida Statutes, are amended
   12  to read:
   13         718.112 Bylaws.—
   14         (2) REQUIRED PROVISIONS.—The bylaws shall provide for the
   15  following and, if they do not do so, shall be deemed to include
   16  the following:
   17         (a) Administration.—
   18         1. The form of administration of the association shall be
   19  described indicating the title of the officers and board of
   20  administration and specifying the powers, duties, manner of
   21  selection and removal, and compensation, if any, of officers and
   22  boards. In the absence of such a provision, the board of
   23  administration shall be composed of five members, except in the
   24  case of a condominium which has five or fewer units, in which
   25  case in a not-for-profit corporation the board shall consist of
   26  not fewer than three members. In the absence of provisions to
   27  the contrary in the bylaws, the board of administration shall
   28  have a president, a secretary, and a treasurer, who shall
   29  perform the duties of such officers customarily performed by
   30  officers of corporations. Unless prohibited in the bylaws, the
   31  board of administration may appoint other officers and grant
   32  them the duties it deems appropriate. Unless otherwise provided
   33  in the bylaws, the officers shall serve without compensation and
   34  at the pleasure of the board of administration. Unless otherwise
   35  provided in the bylaws, the members of the board shall serve
   36  without compensation.
   37         2. When a unit owner files a written inquiry by certified
   38  mail with the board of administration, the board shall respond
   39  in writing to the unit owner within 30 days after of receipt of
   40  the inquiry. If the condominium is a residential condominium,
   41  the board’s response shall either give a substantive response to
   42  the inquirer, notify the inquirer that a legal opinion has been
   43  requested, or notify the inquirer that advice has been requested
   44  from the division. If the board in a residential condominium
   45  requests advice from the division, the board shall, within 10
   46  days after of its receipt of the advice, provide in writing a
   47  substantive response to the inquirer. If a legal opinion is
   48  requested, the board shall, within 60 days after the receipt of
   49  the inquiry, provide in writing a substantive response to the
   50  inquiry. The failure to provide a substantive response to the
   51  inquiry as provided herein precludes the board from recovering
   52  attorney attorney’s fees and costs in any subsequent litigation,
   53  administrative proceeding, or arbitration arising out of the
   54  inquiry. The association may through its board of administration
   55  adopt reasonable rules and regulations regarding the frequency
   56  and manner of responding to unit owner inquiries, one of which
   57  may be that the association is only obligated to respond to one
   58  written inquiry per unit in any given 30-day period. In such a
   59  case, any additional inquiry or inquiries must be responded to
   60  in the subsequent 30-day period, or periods, as applicable.
   61         (b) Quorum; voting requirements; proxies.—
   62         1. Unless a lower number is provided in the bylaws, the
   63  percentage of voting interests required to constitute a quorum
   64  at a meeting of the members is a majority of the voting
   65  interests. Unless otherwise provided in this chapter or in the
   66  declaration, articles of incorporation, or bylaws, and except as
   67  provided in subparagraph (d)4., decisions shall be made by a
   68  majority of the voting interests represented at a meeting at
   69  which a quorum is present.
   70         2. Except as specifically otherwise provided herein, unit
   71  owners in a residential condominium may not vote by general
   72  proxy, but may vote by limited proxies substantially conforming
   73  to a limited proxy form adopted by the division. A voting
   74  interest or consent right allocated to a unit owned by the
   75  association may not be exercised or considered for any purpose,
   76  whether for a quorum, an election, or otherwise. Limited proxies
   77  and general proxies may be used to establish a quorum. Limited
   78  proxies shall be used for votes taken to waive or reduce
   79  reserves in accordance with subparagraph (f)2.; for votes taken
   80  to waive the financial reporting requirements of s. 718.111(13);
   81  for votes taken to amend the declaration pursuant to s. 718.110;
   82  for votes taken to amend the articles of incorporation or bylaws
   83  pursuant to this section; and for any other matter for which
   84  this chapter requires or permits a vote of the unit owners.
   85  Except as provided in paragraph (d), a proxy, limited or
   86  general, may not be used in the election of board members in a
   87  residential condominium. General proxies may be used for other
   88  matters for which limited proxies are not required, and may be
   89  used in voting for nonsubstantive changes to items for which a
   90  limited proxy is required and given. Notwithstanding this
   91  subparagraph, unit owners may vote in person at unit owner
   92  meetings. This subparagraph does not limit the use of general
   93  proxies or require the use of limited proxies for any agenda
   94  item or election at any meeting of a timeshare condominium
   95  association or a nonresidential condominium association.
   96         3. A Any proxy given is effective only for the specific
   97  meeting for which originally given and any lawfully adjourned
   98  meetings thereof. A proxy is not valid longer than 90 days after
   99  the date of the first meeting for which it was given. Each Every
  100  proxy is revocable at any time at the pleasure of the unit owner
  101  executing it.
  102         4. A member of the board of administration or a committee
  103  may submit in writing his or her agreement or disagreement with
  104  any action taken at a meeting that the member did not attend.
  105  This agreement or disagreement may not be used as a vote for or
  106  against the action taken or to create a quorum.
  107         5. If any of the board or committee members meet by
  108  telephone conference, those board or committee members may be
  109  counted toward obtaining a quorum and may vote by telephone. A
  110  telephone speaker must be used so that the conversation of those
  111  members may be heard by the board or committee members attending
  112  in person as well as by any unit owners present at a meeting.
  113         (d) Unit owner meetings.—
  114         1. An annual meeting of the unit owners shall be held at
  115  the location provided in the association bylaws and, if the
  116  bylaws are silent as to the location, the meeting shall be held
  117  within 45 miles of the condominium property. However, such
  118  distance requirement does not apply to an association governing
  119  a timeshare condominium.
  120         2. Unless the bylaws provide otherwise, a vacancy on the
  121  board caused by the expiration of a director’s term shall be
  122  filled by electing a new board member, and the election must be
  123  by secret ballot. An election is not required if the number of
  124  vacancies equals or exceeds the number of candidates. For
  125  purposes of this paragraph, the term “candidate” means an
  126  eligible person who has timely submitted the written notice, as
  127  described in sub-subparagraph 4.a., of his or her intention to
  128  become a candidate. Except in a timeshare or nonresidential
  129  condominium, or if the staggered term of a board member does not
  130  expire until a later annual meeting, or if all members’ terms
  131  would otherwise expire but there are no candidates, the terms of
  132  all board members expire at the annual meeting, and such members
  133  may stand for reelection unless prohibited by the bylaws. If the
  134  bylaws or articles of incorporation permit terms of no more than
  135  2 years, the association board members may serve 2-year terms.
  136  If the number of board members whose terms expire at the annual
  137  meeting equals or exceeds the number of candidates, the
  138  candidates become members of the board effective upon the
  139  adjournment of the annual meeting. Unless the bylaws provide
  140  otherwise, any remaining vacancies shall be filled by the
  141  affirmative vote of the majority of the directors making up the
  142  newly constituted board even if the directors constitute less
  143  than a quorum or there is only one director. In a residential
  144  condominium association of more than 10 units or in a
  145  residential condominium association that does not include
  146  timeshare units or timeshare interests, coowners of a unit may
  147  not serve as members of the board of directors at the same time
  148  unless they own more than one unit or unless there are not
  149  enough eligible candidates to fill the vacancies on the board at
  150  the time of the vacancy. A Any unit owner in a residential
  151  condominium desiring to be a candidate for board membership must
  152  comply with sub-subparagraph 4.a. and must be eligible to be a
  153  candidate to serve on the board of directors at the time of the
  154  deadline for submitting a notice of intent to run in order to
  155  have his or her name listed as a proper candidate on the ballot
  156  or to serve on the board. A person who has been suspended or
  157  removed by the division under this chapter, or who is delinquent
  158  in the payment of any monetary obligation due to the
  159  association, is not eligible to be a candidate for board
  160  membership and may not be listed on the ballot. A person who has
  161  been convicted of any felony in this state or in a United States
  162  District or Territorial Court, or who has been convicted of any
  163  offense in another jurisdiction which would be considered a
  164  felony if committed in this state, is not eligible for board
  165  membership unless such felon’s civil rights have been restored
  166  for at least 5 years as of the date such person seeks election
  167  to the board. The validity of an action by the board is not
  168  affected if it is later determined that a board member is
  169  ineligible for board membership due to having been convicted of
  170  a felony. This subparagraph does not limit the term of a member
  171  of the board of a nonresidential condominium.
  172         3. The bylaws must provide the method of calling meetings
  173  of unit owners, including annual meetings. Written notice must
  174  include an agenda, must be mailed, hand delivered, or
  175  electronically transmitted to each unit owner at least 14 days
  176  before the annual meeting, and must be posted in a conspicuous
  177  place on the condominium property at least 14 continuous days
  178  before the annual meeting. Upon notice to the unit owners, the
  179  board shall, by duly adopted rule, designate a specific location
  180  on the condominium property or association property where all
  181  notices of unit owner meetings shall be posted. This requirement
  182  does not apply if there is no condominium property or
  183  association property for posting notices. In lieu of, or in
  184  addition to, the physical posting of meeting notices, the
  185  association may, by reasonable rule, adopt a procedure for
  186  conspicuously posting and repeatedly broadcasting the notice and
  187  the agenda on a closed-circuit cable television system serving
  188  the condominium association. However, if broadcast notice is
  189  used in lieu of a notice posted physically on the condominium
  190  property, the notice and agenda must be broadcast at least four
  191  times every broadcast hour of each day that a posted notice is
  192  otherwise required under this section. If broadcast notice is
  193  provided, the notice and agenda must be broadcast in a manner
  194  and for a sufficient continuous length of time so as to allow an
  195  average reader to observe the notice and read and comprehend the
  196  entire content of the notice and the agenda. Unless a unit owner
  197  waives in writing the right to receive notice of the annual
  198  meeting, such notice must be hand delivered, mailed, or
  199  electronically transmitted to each unit owner. Notice for
  200  meetings and notice for all other purposes must be mailed to
  201  each unit owner at the address last furnished to the association
  202  by the unit owner, or hand delivered to each unit owner.
  203  However, if a unit is owned by more than one person, the
  204  association must provide notice to the address that the
  205  developer identifies for that purpose and thereafter as one or
  206  more of the owners of the unit advise the association in
  207  writing, or if no address is given or the owners of the unit do
  208  not agree, to the address provided on the deed of record. An
  209  officer of the association, or the manager or other person
  210  providing notice of the association meeting, must provide an
  211  affidavit or United States Postal Service certificate of
  212  mailing, to be included in the official records of the
  213  association affirming that the notice was mailed or hand
  214  delivered in accordance with this provision.
  215         4. The members of the board of a residential condominium
  216  shall be elected by written ballot or voting machine. Proxies
  217  may not be used in electing the board in general elections or
  218  elections to fill vacancies caused by recall, resignation, or
  219  otherwise, unless otherwise provided in this chapter. This
  220  subparagraph does not apply to an association governing a
  221  timeshare condominium.
  222         a. At least 60 days before a scheduled election, the
  223  association shall mail, deliver, or electronically transmit, by
  224  separate association mailing or included in another association
  225  mailing, delivery, or transmission, including regularly
  226  published newsletters, to each unit owner entitled to a vote, a
  227  first notice of the date of the election. A Any unit owner or
  228  other eligible person desiring to be a candidate for the board
  229  must give written notice of his or her intent to be a candidate
  230  to the association at least 40 days before a scheduled election.
  231  Together with the written notice and agenda as set forth in
  232  subparagraph 3., the association shall mail, deliver, or
  233  electronically transmit a second notice of the election to all
  234  unit owners entitled to vote, together with a ballot that lists
  235  all candidates. Upon request of a candidate, an information
  236  sheet, no larger than 8 1/2 inches by 11 inches, which must be
  237  furnished by the candidate at least 35 days before the election,
  238  must be included with the mailing, delivery, or transmission of
  239  the ballot, with the costs of mailing, delivery, or electronic
  240  transmission and copying to be borne by the association. The
  241  association is not liable for the contents of the information
  242  sheets prepared by the candidates. In order to reduce costs, the
  243  association may print or duplicate the information sheets on
  244  both sides of the paper. The division shall by rule establish
  245  voting procedures consistent with this sub-subparagraph,
  246  including rules establishing procedures for giving notice by
  247  electronic transmission and rules providing for the secrecy of
  248  ballots. Elections shall be decided by a plurality of ballots
  249  cast. There is no quorum requirement; however, at least 20
  250  percent of the eligible voters must cast a ballot in order to
  251  have a valid election. A unit owner may not permit any other
  252  person to vote his or her ballot, and any ballots improperly
  253  cast are invalid. A unit owner who violates this provision may
  254  be fined by the association in accordance with s. 718.303. A
  255  unit owner who needs assistance in casting the ballot for the
  256  reasons stated in s. 101.051 may obtain such assistance. The
  257  regular election must occur on the date of the annual meeting.
  258  Notwithstanding this sub-subparagraph, an election is not
  259  required unless more candidates file notices of intent to run or
  260  are nominated than board vacancies exist.
  261         b. Within 90 days after being elected or appointed to the
  262  board of an association of a residential condominium, each newly
  263  elected or appointed director shall certify in writing to the
  264  secretary of the association that he or she has read the
  265  association’s declaration of condominium, articles of
  266  incorporation, bylaws, and current written policies; that he or
  267  she will work to uphold such documents and policies to the best
  268  of his or her ability; and that he or she will faithfully
  269  discharge his or her fiduciary responsibility to the
  270  association’s members. In lieu of this written certification,
  271  within 90 days after being elected or appointed to the board,
  272  the newly elected or appointed director may submit a certificate
  273  of having satisfactorily completed the educational curriculum
  274  administered by a division-approved condominium education
  275  provider within 1 year before or 90 days after the date of
  276  election or appointment. The written certification or
  277  educational certificate is valid and does not have to be
  278  resubmitted as long as the director serves on the board without
  279  interruption. A director of an association of a residential
  280  condominium who fails to timely file the written certification
  281  or educational certificate is suspended from service on the
  282  board until he or she complies with this sub-subparagraph. The
  283  board may temporarily fill the vacancy during the period of
  284  suspension. The secretary shall cause the association to retain
  285  a director’s written certification or educational certificate
  286  for inspection by the members for 5 years after a director’s
  287  election or the duration of the director’s uninterrupted tenure,
  288  whichever is longer. Failure to have such written certification
  289  or educational certificate on file does not affect the validity
  290  of any board action.
  291         c. Any challenge to the election process must be commenced
  292  within 60 days after the election results are announced.
  293         5. Any approval by unit owners called for by this chapter
  294  or the applicable declaration or bylaws, including, but not
  295  limited to, the approval requirement in s. 718.111(8), must be
  296  made at a duly noticed meeting of unit owners and is subject to
  297  all requirements of this chapter or the applicable condominium
  298  documents relating to unit owner decisionmaking, except that
  299  unit owners may take action by written agreement, without
  300  meetings, on matters for which action by written agreement
  301  without meetings is expressly allowed by the applicable bylaws
  302  or declaration or any law that provides for such action.
  303         6. Unit owners may waive notice of specific meetings if
  304  allowed by the applicable bylaws or declaration or any law. If
  305  authorized by the bylaws, notice of meetings of the board of
  306  administration, unit owner meetings, except unit owner meetings
  307  called to recall board members under paragraph (j), and
  308  committee meetings may be given by electronic transmission to
  309  unit owners who consent to receive notice by electronic
  310  transmission.
  311         7. Unit owners have the right to participate in meetings of
  312  unit owners with reference to all designated agenda items.
  313  However, the association may adopt reasonable rules governing
  314  the frequency, duration, and manner of unit owner participation.
  315         8. A unit owner may tape record or videotape a meeting of
  316  the unit owners subject to reasonable rules adopted by the
  317  division.
  318         9. Unless otherwise provided in the bylaws, any vacancy
  319  occurring on the board before the expiration of a term may be
  320  filled by the affirmative vote of the majority of the remaining
  321  directors, even if the remaining directors constitute less than
  322  a quorum, or by the sole remaining director. In the alternative,
  323  a board may hold an election to fill the vacancy, in which case
  324  the election procedures must conform to sub-subparagraph 4.a.
  325  unless the association governs 10 units or fewer and has opted
  326  out of the statutory election process, in which case the bylaws
  327  of the association control. Unless otherwise provided in the
  328  bylaws, a board member appointed or elected under this section
  329  shall fill the vacancy for the unexpired term of the seat being
  330  filled. Filling vacancies created by recall is governed by
  331  paragraph (j) and rules adopted by the division.
  332         10. This chapter does not limit the use of general or
  333  limited proxies, require the use of general or limited proxies,
  334  or require the use of a written ballot or voting machine for any
  335  agenda item or election at any meeting of a timeshare
  336  condominium association or nonresidential condominium
  337  association.
  338  
  339  Notwithstanding subparagraph (b)2. and sub-subparagraph 4.a., an
  340  association of 10 or fewer residential units may, by affirmative
  341  vote of a majority of the total voting interests, provide for
  342  different voting and election procedures in its bylaws, which
  343  may be by a proxy specifically delineating the different voting
  344  and election procedures. The different voting and election
  345  procedures may provide for elections to be conducted by limited
  346  or general proxy.
  347         (k) Arbitration.—There shall be a provision for mandatory
  348  nonbinding arbitration as provided for in s. 718.1255 for any
  349  residential condominium.
  350         (l) Certificate of compliance.— A provision that a
  351  certificate of compliance from a licensed electrical contractor
  352  or electrician may be accepted by the association’s board as
  353  evidence of compliance of the condominium units with the
  354  applicable fire and life safety code must be included.
  355  Notwithstanding chapter 633 or of any other code, statute,
  356  ordinance, administrative rule, or regulation, or any
  357  interpretation of the foregoing, an association, condominium, or
  358  unit owner is not obligated to retrofit the common elements,
  359  association property, or units of a residential condominium with
  360  a fire sprinkler system in a building that has been certified
  361  for occupancy by the applicable governmental entity if the unit
  362  owners have voted to forego such retrofitting by the affirmative
  363  vote of a majority of all voting interests in the affected
  364  condominium. The local authority having jurisdiction may not
  365  require completion of retrofitting with a fire sprinkler system
  366  before January 1, 2020 the end of 2019. By December 31, 2016, a
  367  residential condominium an association that is not in compliance
  368  with the requirements for a fire sprinkler system and has not
  369  voted to forego retrofitting of such a system must initiate an
  370  application for a building permit for the required installation
  371  with the local government having jurisdiction demonstrating that
  372  the association will become compliant by December 31, 2019.
  373         1. A vote to forego retrofitting in a residential
  374  condominium may be obtained by limited proxy or by a ballot
  375  personally cast at a duly called membership meeting, or by
  376  execution of a written consent by the member, and is effective
  377  upon recording a certificate attesting to such vote in the
  378  public records of the county where the condominium is located.
  379  The association shall mail or hand deliver to each unit owner
  380  written notice at least 14 days before the membership meeting in
  381  which the vote to forego retrofitting of the required fire
  382  sprinkler system is to take place. Within 30 days after the
  383  association’s opt-out vote, notice of the results of the opt-out
  384  vote must be mailed or hand delivered to all unit owners.
  385  Evidence of compliance with this notice requirement must be made
  386  by affidavit executed by the person providing the notice and
  387  filed among the official records of the association. After
  388  notice is provided to each owner, a copy must be provided by the
  389  current owner to a new owner before closing and by a unit owner
  390  to a renter before signing a lease.
  391         2. If there has been a previous vote to forego
  392  retrofitting, a vote to require retrofitting may be obtained at
  393  a special meeting of the unit owners called by a petition of at
  394  least 10 percent of the voting interests. Such a vote may only
  395  be called once every 3 years. Notice shall be provided as
  396  required for any regularly called meeting of the unit owners,
  397  and must state the purpose of the meeting. Electronic
  398  transmission may not be used to provide notice of a meeting
  399  called in whole or in part for this purpose.
  400         3. As part of the information collected annually from
  401  condominiums, the division shall require condominium
  402  associations to report the membership vote and recording of a
  403  certificate under this subsection and, if retrofitting has been
  404  undertaken, the per-unit cost of such work. The division shall
  405  annually report to the Division of State Fire Marshal of the
  406  Department of Financial Services the number of condominiums that
  407  have elected to forego retrofitting.
  408         4. Notwithstanding s. 553.509, an association may not be
  409  obligated to, and may forego the retrofitting of, any
  410  improvements required by s. 553.509(2) upon an affirmative vote
  411  of a majority of the voting interests in the affected
  412  condominium.
  413         Section 2. This act shall take effect July 1, 2014.