Bill Text: FL S0630 | 2021 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Community Associations
Spectrum: Bipartisan Bill
Status: (Passed) 2021-06-17 - Chapter No. 2021-99, companion bill(s) passed, see CS/CS/SB 56 (Ch. 2021-91), CS/CS/SB 1966 (Ch. 2021-135) [S0630 Detail]
Download: Florida-2021-S0630-Introduced.html
Bill Title: Community Associations
Spectrum: Bipartisan Bill
Status: (Passed) 2021-06-17 - Chapter No. 2021-99, companion bill(s) passed, see CS/CS/SB 56 (Ch. 2021-91), CS/CS/SB 1966 (Ch. 2021-135) [S0630 Detail]
Download: Florida-2021-S0630-Introduced.html
Florida Senate - 2021 SB 630
By Senator Baxley
12-00203B-21 2021630__
1 A bill to be entitled
2 An act relating to community associations; amending s.
3 627.714, F.S.; prohibiting insurance policies from
4 providing specified rights of subrogation under
5 certain circumstances; amending s. 718.103, F.S.;
6 revising the definition of the terms
7 “multicondominium,” “operation,” and “operation of the
8 condominium”; amending s. 718.111, F.S.; requiring
9 that certain records be maintained for a specified
10 time; requiring associations to maintain official
11 records in a specified manner; requiring an
12 association to provide an itemized list or affidavit
13 relating to certain records to certain persons;
14 requiring that such itemized list or affidavit be
15 maintained for a time certain; creating a rebuttable
16 presumption; prohibiting an association from requiring
17 certain actions relating to the inspection of records;
18 revising requirements relating to the posting of
19 digital copies of certain documents by certain
20 condominium associations; conforming cross-references;
21 amending s. 718.112, F.S.; authorizing a condominium
22 association to extinguish discriminatory restrictions;
23 revising the calculation used in determining a board
24 member’s term limit; providing requirements for
25 certain notices; revising the fees that an association
26 may charge for transfers; deleting a prohibition
27 against employing or contracting with certain service
28 providers; amending s. 718.113, F.S.; revising
29 legislative findings; defining the terms “natural gas
30 fuel” and “natural gas fuel vehicle”; revising
31 requirements for electric vehicle charging stations;
32 providing requirements for natural gas fuel stations
33 on property governed by condominium associations;
34 amending s. 718.117, F.S.; conforming provisions to
35 changes made by the act; amending s. 718.121, F.S.;
36 providing that labor and materials associated with the
37 installation of a natural gas fuel station may not
38 serve as the basis for filing a lien against an
39 association but may serve as the basis for filing a
40 lien against a unit owner; requiring that notices of
41 intent to record a claim of lien specify certain
42 dates; amending s. 718.1255, F.S.; authorizing parties
43 to initiate presuit mediation under certain
44 circumstances; specifying the circumstances under
45 which arbitration is binding on the parties; providing
46 requirements for presuit mediation; making technical
47 changes; amending s. 718.1265, F.S.; revising the
48 emergency powers of condominium associations;
49 prohibiting condominium associations from taking
50 certain actions during a declared state of emergency;
51 amending s. 718.202, F.S.; revising the allowable uses
52 of certain escrow funds withdrawn by developers;
53 defining the term “actual costs”; amending s. 718.303,
54 F.S.; revising requirements for certain actions for
55 failure to comply with specified provisions relating
56 to condominium associations; revising requirements for
57 certain fines; amending s. 718.405, F.S.; providing
58 clarifying language relating to certain
59 multicondominium declarations; providing
60 applicability; amending s. 718.501, F.S.; defining the
61 term “financial issue”; authorizing the Division of
62 Condominiums, Timeshares, and Mobile Homes to adopt
63 rules; conforming provisions to changes made by the
64 act; amending s. 718.5014, F.S.; revising a
65 requirement regarding the location of the principal
66 office of the Office of the Condominium Ombudsman;
67 amending s. 719.103, F.S.; revising the definition of
68 the term “unit” to specify that an interest in a
69 cooperative unit is an interest in real property;
70 amending s. 719.104, F.S.; prohibiting an association
71 from requiring certain actions relating to the
72 inspection of records; amending s. 719.106, F.S.;
73 revising provisions relating to a quorum and voting
74 rights for members remotely participating in meetings;
75 revising the procedure to challenge a board member
76 recall; authorizing cooperative associations to
77 extinguish discriminatory restrictions; amending s.
78 719.128, F.S.; revising emergency powers for
79 cooperative associations; prohibiting cooperative
80 associations from taking certain actions during a
81 declared state of emergency; amending s. 720.301,
82 F.S.; revising the definition of the term “governing
83 documents”; amending s. 720.303, F.S.; authorizing an
84 association to adopt procedures for electronic meeting
85 notices; revising the documents that constitute the
86 official records of an association; revising the
87 circumstances under which a specified statement must
88 be included in an association’s financial report;
89 revising requirements for such statement; revising the
90 circumstances under which an association is deemed to
91 have provided for reserve accounts; revising the
92 procedure to challenge a board member recall; amending
93 s. 720.305, F.S.; providing requirements for certain
94 fines levied by a board of administration; amending s.
95 720.306, F.S.; revising requirements for providing
96 certain notices; providing limitations on associations
97 when a parcel owner attempts to rent or lease his or
98 her parcel; defining the term “affiliated entity”;
99 amending the procedure for election disputes; amending
100 s. 720.311, F.S.; revising the dispute resolution
101 requirements for election disputes and recall
102 disputes; amending s. 720.3075, F.S.; authorizing
103 homeowners’ associations to extinguish discriminatory
104 restrictions; amending s. 720.316, F.S.; revising
105 emergency powers of homeowners’ associations;
106 prohibiting homeowners’ associations from taking
107 certain actions during a declared state of emergency;
108 providing an effective date.
109
110 Be It Enacted by the Legislature of the State of Florida:
111
112 Section 1. Subsection (4) of section 627.714, Florida
113 Statutes, is amended to read:
114 627.714 Residential condominium unit owner coverage; loss
115 assessment coverage required.—
116 (4) Every individual unit owner’s residential property
117 policy must contain a provision stating that the coverage
118 afforded by such policy is excess coverage over the amount
119 recoverable under any other policy covering the same property.
120 If a condominium association’s insurance policy does not provide
121 rights for subrogation against the unit owners in the
122 association, an insurance policy issued to an individual unit
123 owner in the association may not provide rights of subrogation
124 against the condominium association.
125 Section 2. Subsections (20) and (21) of section 718.103,
126 Florida Statutes, are amended to read:
127 718.103 Definitions.—As used in this chapter, the term:
128 (20) “Multicondominium” means real property a real estate
129 development containing two or more condominiums, all of which
130 are operated by the same association.
131 (21) “Operation” or “operation of the condominium” includes
132 the administration and management of the condominium property
133 and the association.
134 Section 3. Paragraph (a) of subsection (1) and paragraphs
135 (a), (b), (c), (f), and (g) of subsection (12) of section
136 718.111, Florida Statutes, are amended to read:
137 718.111 The association.—
138 (1) CORPORATE ENTITY.—
139 (a) The operation of the condominium shall be by the
140 association, which must be a Florida corporation for profit or a
141 Florida corporation not for profit. However, any association
142 which was in existence on January 1, 1977, need not be
143 incorporated. The owners of units shall be shareholders or
144 members of the association. The officers and directors of the
145 association have a fiduciary relationship to the unit owners. It
146 is the intent of the Legislature that nothing in this paragraph
147 shall be construed as providing for or removing a requirement of
148 a fiduciary relationship between any manager employed by the
149 association and the unit owners. An officer, director, or
150 manager may not solicit, offer to accept, or accept any thing or
151 service of value or kickback for which consideration has not
152 been provided for his or her own benefit or that of his or her
153 immediate family, from any person providing or proposing to
154 provide goods or services to the association. Any such officer,
155 director, or manager who knowingly so solicits, offers to
156 accept, or accepts any thing or service of value or kickback is
157 subject to a civil penalty pursuant to s. 718.501(2)(d) s.
158 718.501(1)(d) and, if applicable, a criminal penalty as provided
159 in paragraph (d). However, this paragraph does not prohibit an
160 officer, director, or manager from accepting services or items
161 received in connection with trade fairs or education programs.
162 An association may operate more than one condominium.
163 (12) OFFICIAL RECORDS.—
164 (a) From the inception of the association, the association
165 shall maintain each of the following items, if applicable, which
166 constitutes the official records of the association:
167 1. A copy of the plans, permits, warranties, and other
168 items provided by the developer under pursuant to s. 718.301(4).
169 2. A photocopy of the recorded declaration of condominium
170 of each condominium operated by the association and each
171 amendment to each declaration.
172 3. A photocopy of the recorded bylaws of the association
173 and each amendment to the bylaws.
174 4. A certified copy of the articles of incorporation of the
175 association, or other documents creating the association, and
176 each amendment thereto.
177 5. A copy of the current rules of the association.
178 6. A book or books that contain the minutes of all meetings
179 of the association, the board of administration, and the unit
180 owners.
181 7. A current roster of all unit owners and their mailing
182 addresses, unit identifications, voting certifications, and, if
183 known, telephone numbers. The association shall also maintain
184 the e-mail addresses and facsimile numbers of unit owners
185 consenting to receive notice by electronic transmission. The e
186 mail addresses and facsimile numbers are not accessible to unit
187 owners if consent to receive notice by electronic transmission
188 is not provided in accordance with sub-subparagraph (c)3.e.
189 However, the association is not liable for an inadvertent
190 disclosure of the e-mail address or facsimile number for
191 receiving electronic transmission of notices.
192 8. All current insurance policies of the association and
193 condominiums operated by the association.
194 9. A current copy of any management agreement, lease, or
195 other contract to which the association is a party or under
196 which the association or the unit owners have an obligation or
197 responsibility.
198 10. Bills of sale or transfer for all property owned by the
199 association.
200 11. Accounting records for the association and separate
201 accounting records for each condominium that the association
202 operates. Any person who knowingly or intentionally defaces or
203 destroys such records, or who knowingly or intentionally fails
204 to create or maintain such records, with the intent of causing
205 harm to the association or one or more of its members, is
206 personally subject to a civil penalty under s. 718.501(2)(d)
207 pursuant to s. 718.501(1)(d). The accounting records must
208 include, but are not limited to:
209 a. Accurate, itemized, and detailed records of all receipts
210 and expenditures.
211 b. A current account and a monthly, bimonthly, or quarterly
212 statement of the account for each unit designating the name of
213 the unit owner, the due date and amount of each assessment, the
214 amount paid on the account, and the balance due.
215 c. All audits, reviews, accounting statements, and
216 financial reports of the association or condominium.
217 d. All contracts for work to be performed. Bids for work to
218 be performed are also considered official records and must be
219 maintained by the association for at least 1 year after receipt
220 of the bid.
221 12. Ballots, sign-in sheets, voting proxies, and all other
222 papers and electronic records relating to voting by unit owners,
223 which must be maintained for 1 year from the date of the
224 election, vote, or meeting to which the document relates,
225 notwithstanding paragraph (b).
226 13. All rental records if the association is acting as
227 agent for the rental of condominium units.
228 14. A copy of the current question and answer sheet as
229 described in s. 718.504.
230 15. All other written records of the association not
231 specifically included in the foregoing which are related to the
232 operation of the association.
233 16. A copy of the inspection report as described in s.
234 718.301(4)(p).
235 16.17. Bids for materials, equipment, or services.
236 17. All other written records of the association not
237 specified in subparagraphs 1.-16. which are related to the
238 operation of the association.
239 (b) The official records specified in subparagraphs (a)1.
240 6. must be permanently maintained from the inception of the
241 association. Bids for work to be performed or for materials,
242 equipment, or services must be maintained for at least 1 year
243 after receipt of the bid. All other official records must be
244 maintained within the state for at least 7 years, unless
245 otherwise provided by general law. All official records must be
246 maintained in a manner and format determined by rules of the
247 division so that the records are easily accessible for
248 inspection. The records of the association shall be made
249 available to a unit owner within 45 miles of the condominium
250 property or within the county in which the condominium property
251 is located within 10 working days after receipt of a written
252 request by the board or its designee. However, such distance
253 requirement does not apply to an association governing a
254 timeshare condominium. This paragraph may be complied with by
255 having a copy of the official records of the association
256 available for inspection or copying on the condominium property
257 or association property, or the association may offer the option
258 of making the records available to a unit owner electronically
259 via the Internet or by allowing the records to be viewed in
260 electronic format on a computer screen and printed upon request.
261 The association is not responsible for the use or misuse of the
262 information provided to an association member or his or her
263 authorized representative in pursuant to the compliance with
264 requirements of this chapter unless the association has an
265 affirmative duty not to disclose such information under pursuant
266 to this chapter.
267 (c)1. The official records of the association are open to
268 inspection by any association member or the authorized
269 representative of such member at all reasonable times. The right
270 to inspect the records includes the right to make or obtain
271 copies, at the reasonable expense, if any, of the member or
272 authorized representative of such member. A renter of a unit has
273 a right to inspect and copy only the declaration of condominium
274 and the association’s bylaws and rules. The association must
275 provide an itemized list to the member or the authorized
276 representative of such member of all records that are made
277 available for inspection and copying in response to a written
278 request. Any of the association’s official records that are
279 unavailable must be identified as such on the itemized list. The
280 accuracy of the itemized list must be certified by a manager
281 licensed under part VIII of chapter 468, or a board member if
282 there is no such manager, in a signed statement that, to the
283 best of his or her knowledge and belief, the itemized list is
284 accurate or by execution of a sworn affidavit by the association
285 attesting to its accuracy. The association shall maintain a copy
286 of the itemized list or the affidavit, as appropriate, for at
287 least 7 years. Delivery of the itemized list or the affidavit,
288 as appropriate, to the person requesting the records creates a
289 rebuttable presumption that the association complied with this
290 paragraph. The division may adopt by rule specific requirements
291 for the itemized list. The association may adopt reasonable
292 rules regarding the frequency, time, location, notice, and
293 manner of record inspections and copying, but may not require a
294 member to demonstrate any purpose or state any reason for the
295 inspection. The failure of an association to provide the records
296 within 10 working days after receipt of a written request
297 creates a rebuttable presumption that the association willfully
298 failed to comply with this paragraph. A unit owner who is denied
299 access to official records is entitled to the actual damages or
300 minimum damages for the association’s willful failure to comply.
301 Minimum damages are $50 per calendar day for up to 10 days,
302 beginning on the 11th working day after receipt of the written
303 request. The failure to permit inspection entitles any person
304 prevailing in an enforcement action to recover reasonable
305 attorney fees from the person in control of the records who,
306 directly or indirectly, knowingly denied access to the records.
307 2. Any person who knowingly or intentionally defaces or
308 destroys accounting records that are required by this chapter to
309 be maintained during the period for which such records are
310 required to be maintained, or who knowingly or intentionally
311 fails to create or maintain accounting records that are required
312 to be created or maintained, with the intent of causing harm to
313 the association or one or more of its members, is personally
314 subject to a civil penalty under s. 718.501(2)(d) pursuant to s.
315 718.501(1)(d).
316 3. The association shall maintain an adequate number of
317 copies of the declaration, articles of incorporation, bylaws,
318 and rules, and all amendments to each of the foregoing, as well
319 as the question and answer sheet as described in s. 718.504 and
320 year-end financial information required under this section, on
321 the condominium property to ensure their availability to unit
322 owners and prospective purchasers, and may charge its actual
323 costs for preparing and furnishing these documents to those
324 requesting the documents. An association shall allow a member or
325 his or her authorized representative to use a portable device,
326 including a smartphone, tablet, portable scanner, or any other
327 technology capable of scanning or taking photographs, to make an
328 electronic copy of the official records in lieu of the
329 association’s providing the member or his or her authorized
330 representative with a copy of such records. The association may
331 not charge a member or his or her authorized representative for
332 the use of a portable device. Notwithstanding this paragraph,
333 the following records are not accessible to unit owners:
334 a. Any record protected by the lawyer-client privilege as
335 described in s. 90.502 and any record protected by the work
336 product privilege, including a record prepared by an association
337 attorney or prepared at the attorney’s express direction, which
338 reflects a mental impression, conclusion, litigation strategy,
339 or legal theory of the attorney or the association, and which
340 was prepared exclusively for civil or criminal litigation or for
341 adversarial administrative proceedings, or which was prepared in
342 anticipation of such litigation or proceedings until the
343 conclusion of the litigation or proceedings.
344 b. Information obtained by an association in connection
345 with the approval of the lease, sale, or other transfer of a
346 unit.
347 c. Personnel records of association or management company
348 employees, including, but not limited to, disciplinary, payroll,
349 health, and insurance records. For purposes of this sub
350 subparagraph, the term “personnel records” does not include
351 written employment agreements with an association employee or
352 management company, or budgetary or financial records that
353 indicate the compensation paid to an association employee.
354 d. Medical records of unit owners.
355 e. Social security numbers, driver license numbers, credit
356 card numbers, e-mail addresses, telephone numbers, facsimile
357 numbers, emergency contact information, addresses of a unit
358 owner other than as provided to fulfill the association’s notice
359 requirements, and other personal identifying information of any
360 person, excluding the person’s name, unit designation, mailing
361 address, property address, and any address, e-mail address, or
362 facsimile number provided to the association to fulfill the
363 association’s notice requirements. Notwithstanding the
364 restrictions in this sub-subparagraph, an association may print
365 and distribute to unit parcel owners a directory containing the
366 name, unit parcel address, and all telephone numbers of each
367 unit parcel owner. However, an owner may exclude his or her
368 telephone numbers from the directory by so requesting in writing
369 to the association. An owner may consent in writing to the
370 disclosure of other contact information described in this sub
371 subparagraph. The association is not liable for the inadvertent
372 disclosure of information that is protected under this sub
373 subparagraph if the information is included in an official
374 record of the association and is voluntarily provided by an
375 owner and not requested by the association.
376 f. Electronic security measures that are used by the
377 association to safeguard data, including passwords.
378 g. The software and operating system used by the
379 association which allow the manipulation of data, even if the
380 owner owns a copy of the same software used by the association.
381 The data is part of the official records of the association.
382 (f) An outgoing board or committee member must relinquish
383 all official records and property of the association in his or
384 her possession or under his or her control to the incoming board
385 within 5 days after the election. The division shall impose a
386 civil penalty as set forth in s. 718.501(2)(d)6. s.
387 718.501(1)(d)6. against an outgoing board or committee member
388 who willfully and knowingly fails to relinquish such records and
389 property.
390 (g)1. By January 1, 2019, an association managing a
391 condominium with 150 or more units which does not contain
392 timeshare units shall post digital copies of the documents
393 specified in subparagraph 2. on its website or make such
394 documents available through an application that can be
395 downloaded on a mobile device.
396 a. The association’s website or application must be:
397 (I) An independent website, application, or web portal
398 wholly owned and operated by the association; or
399 (II) A website, application, or web portal operated by a
400 third-party provider with whom the association owns, leases,
401 rents, or otherwise obtains the right to operate a web page,
402 subpage, web portal, or collection of subpages or web portals,
403 or an application which is dedicated to the association’s
404 activities and on which required notices, records, and documents
405 may be posted or made available by the association.
406 b. The association’s website or application must be
407 accessible through the Internet and must contain a subpage, web
408 portal, or other protected electronic location that is
409 inaccessible to the general public and accessible only to unit
410 owners and employees of the association.
411 c. Upon a unit owner’s written request, the association
412 must provide the unit owner with a username and password and
413 access to the protected sections of the association’s website or
414 application which that contain any notices, records, or
415 documents that must be electronically provided.
416 2. A current copy of the following documents must be posted
417 in digital format on the association’s website or application:
418 a. The recorded declaration of condominium of each
419 condominium operated by the association and each amendment to
420 each declaration.
421 b. The recorded bylaws of the association and each
422 amendment to the bylaws.
423 c. The articles of incorporation of the association, or
424 other documents creating the association, and each amendment to
425 the articles of incorporation or other documents thereto. The
426 copy posted pursuant to this sub-subparagraph must be a copy of
427 the articles of incorporation filed with the Department of
428 State.
429 d. The rules of the association.
430 e. A list of all executory contracts or documents to which
431 the association is a party or under which the association or the
432 unit owners have an obligation or responsibility and, after
433 bidding for the related materials, equipment, or services has
434 closed, a list of bids received by the association within the
435 past year. Summaries of bids for materials, equipment, or
436 services which exceed $500 must be maintained on the website or
437 application for 1 year. In lieu of summaries, complete copies of
438 the bids may be posted.
439 f. The annual budget required by s. 718.112(2)(f) and any
440 proposed budget to be considered at the annual meeting.
441 g. The financial report required by subsection (13) and any
442 monthly income or expense statement to be considered at a
443 meeting.
444 h. The certification of each director required by s.
445 718.112(2)(d)4.b.
446 i. All contracts or transactions between the association
447 and any director, officer, corporation, firm, or association
448 that is not an affiliated condominium association or any other
449 entity in which an association director is also a director or
450 officer and financially interested.
451 j. Any contract or document regarding a conflict of
452 interest or possible conflict of interest as provided in ss.
453 468.436(2)(b)6. and 718.3027(3).
454 k. The notice of any unit owner meeting and the agenda for
455 the meeting, as required by s. 718.112(2)(d)3., no later than 14
456 days before the meeting. The notice must be posted in plain view
457 on the front page of the website or application, or on a
458 separate subpage of the website or application labeled “Notices”
459 which is conspicuously visible and linked from the front page.
460 The association must also post on its website or application any
461 document to be considered and voted on by the owners during the
462 meeting or any document listed on the agenda at least 7 days
463 before the meeting at which the document or the information
464 within the document will be considered.
465 l. Notice of any board meeting, the agenda, and any other
466 document required for the meeting as required by s.
467 718.112(2)(c), which must be posted no later than the date
468 required for notice under pursuant to s. 718.112(2)(c).
469 3. The association shall ensure that the information and
470 records described in paragraph (c), which are not allowed to be
471 accessible to unit owners, are not posted on the association’s
472 website or application. If protected information or information
473 restricted from being accessible to unit owners is included in
474 documents that are required to be posted on the association’s
475 website or application, the association shall ensure the
476 information is redacted before posting the documents online.
477 Notwithstanding the foregoing, the association or its agent is
478 not liable for disclosing information that is protected or
479 restricted under pursuant to this paragraph unless such
480 disclosure was made with a knowing or intentional disregard of
481 the protected or restricted nature of such information.
482 4. The failure of the association to post information
483 required under subparagraph 2. is not in and of itself
484 sufficient to invalidate any action or decision of the
485 association’s board or its committees.
486 Section 4. Paragraphs (d), (i), (j), (k), and (p) of
487 subsection (2) of section 718.112, Florida Statutes, are
488 amended, and paragraph (c) is added to subsection (1) of that
489 section, to read:
490 718.112 Bylaws.—
491 (1) GENERALLY.—
492 (c) The association may extinguish a discriminatory
493 restriction as provided under s. 712.065.
494 (2) REQUIRED PROVISIONS.—The bylaws shall provide for the
495 following and, if they do not do so, shall be deemed to include
496 the following:
497 (d) Unit owner meetings.—
498 1. An annual meeting of the unit owners must be held at the
499 location provided in the association bylaws and, if the bylaws
500 are silent as to the location, the meeting must be held within
501 45 miles of the condominium property. However, such distance
502 requirement does not apply to an association governing a
503 timeshare condominium.
504 2. Unless the bylaws provide otherwise, a vacancy on the
505 board caused by the expiration of a director’s term must be
506 filled by electing a new board member, and the election must be
507 by secret ballot. An election is not required if the number of
508 vacancies equals or exceeds the number of candidates. For
509 purposes of this paragraph, the term “candidate” means an
510 eligible person who has timely submitted the written notice, as
511 described in sub-subparagraph 4.a., of his or her intention to
512 become a candidate. Except in a timeshare or nonresidential
513 condominium, or if the staggered term of a board member does not
514 expire until a later annual meeting, or if all members’ terms
515 would otherwise expire but there are no candidates, the terms of
516 all board members expire at the annual meeting, and such members
517 may stand for reelection unless prohibited by the bylaws. Board
518 members may serve terms longer than 1 year if permitted by the
519 bylaws or articles of incorporation. A board member may not
520 serve more than 8 consecutive years unless approved by an
521 affirmative vote of unit owners representing two-thirds of all
522 votes cast in the election or unless there are not enough
523 eligible candidates to fill the vacancies on the board at the
524 time of the vacancy. Only board service that occurs on or after
525 July 1, 2018, may be used when calculating a board member’s term
526 limit. If the number of board members whose terms expire at the
527 annual meeting equals or exceeds the number of candidates, the
528 candidates become members of the board effective upon the
529 adjournment of the annual meeting. Unless the bylaws provide
530 otherwise, any remaining vacancies shall be filled by the
531 affirmative vote of the majority of the directors making up the
532 newly constituted board even if the directors constitute less
533 than a quorum or there is only one director. In a residential
534 condominium association of more than 10 units or in a
535 residential condominium association that does not include
536 timeshare units or timeshare interests, co-owners of a unit may
537 not serve as members of the board of directors at the same time
538 unless they own more than one unit or unless there are not
539 enough eligible candidates to fill the vacancies on the board at
540 the time of the vacancy. A unit owner in a residential
541 condominium desiring to be a candidate for board membership must
542 comply with sub-subparagraph 4.a. and must be eligible to be a
543 candidate to serve on the board of directors at the time of the
544 deadline for submitting a notice of intent to run in order to
545 have his or her name listed as a proper candidate on the ballot
546 or to serve on the board. A person who has been suspended or
547 removed by the division under this chapter, or who is delinquent
548 in the payment of any monetary obligation due to the
549 association, is not eligible to be a candidate for board
550 membership and may not be listed on the ballot. A person who has
551 been convicted of any felony in this state or in a United States
552 District or Territorial Court, or who has been convicted of any
553 offense in another jurisdiction which would be considered a
554 felony if committed in this state, is not eligible for board
555 membership unless such felon’s civil rights have been restored
556 for at least 5 years as of the date such person seeks election
557 to the board. The validity of an action by the board is not
558 affected if it is later determined that a board member is
559 ineligible for board membership due to having been convicted of
560 a felony. This subparagraph does not limit the term of a member
561 of the board of a nonresidential or timeshare condominium.
562 3. The bylaws must provide the method of calling meetings
563 of unit owners, including annual meetings. Written notice of an
564 annual meeting must include an agenda;, must be mailed, hand
565 delivered, or electronically transmitted to each unit owner at
566 least 14 days before the annual meeting;, and must be posted in
567 a conspicuous place on the condominium property or association
568 property at least 14 continuous days before the annual meeting.
569 Written notice of a meeting other than an annual meeting must
570 include an agenda; be mailed, hand delivered, or electronically
571 transmitted to each unit owner; and be posted in a conspicuous
572 place on the condominium property or association property within
573 the timeframe specified in the bylaws. If the bylaws do not
574 specify a timeframe for written notice of a meeting other than
575 an annual meeting, notice must be provided at least 14
576 continuous days before the meeting. Upon notice to the unit
577 owners, the board shall, by duly adopted rule, designate a
578 specific location on the condominium property or association
579 property where all notices of unit owner meetings must be
580 posted. This requirement does not apply if there is no
581 condominium property for posting notices. In lieu of, or in
582 addition to, the physical posting of meeting notices, the
583 association may, by reasonable rule, adopt a procedure for
584 conspicuously posting and repeatedly broadcasting the notice and
585 the agenda on a closed-circuit cable television system serving
586 the condominium association. However, if broadcast notice is
587 used in lieu of a notice posted physically on the condominium
588 property, the notice and agenda must be broadcast at least four
589 times every broadcast hour of each day that a posted notice is
590 otherwise required under this section. If broadcast notice is
591 provided, the notice and agenda must be broadcast in a manner
592 and for a sufficient continuous length of time so as to allow an
593 average reader to observe the notice and read and comprehend the
594 entire content of the notice and the agenda. In addition to any
595 of the authorized means of providing notice of a meeting of the
596 board, the association may, by rule, adopt a procedure for
597 conspicuously posting the meeting notice and the agenda on a
598 website serving the condominium association for at least the
599 minimum period of time for which a notice of a meeting is also
600 required to be physically posted on the condominium property.
601 Any rule adopted shall, in addition to other matters, include a
602 requirement that the association send an electronic notice in
603 the same manner as a notice for a meeting of the members, which
604 must include a hyperlink to the website where the notice is
605 posted, to unit owners whose e-mail addresses are included in
606 the association’s official records. Unless a unit owner waives
607 in writing the right to receive notice of the annual meeting,
608 such notice must be hand delivered, mailed, or electronically
609 transmitted to each unit owner. Notice for meetings and notice
610 for all other purposes must be mailed to each unit owner at the
611 address last furnished to the association by the unit owner, or
612 hand delivered to each unit owner. However, if a unit is owned
613 by more than one person, the association must provide notice to
614 the address that the developer identifies for that purpose and
615 thereafter as one or more of the owners of the unit advise the
616 association in writing, or if no address is given or the owners
617 of the unit do not agree, to the address provided on the deed of
618 record. An officer of the association, or the manager or other
619 person providing notice of the association meeting, must provide
620 an affidavit or United States Postal Service certificate of
621 mailing, to be included in the official records of the
622 association affirming that the notice was mailed or hand
623 delivered in accordance with this provision.
624 4. The members of the board of a residential condominium
625 shall be elected by written ballot or voting machine. Proxies
626 may not be used in electing the board in general elections or
627 elections to fill vacancies caused by recall, resignation, or
628 otherwise, unless otherwise provided in this chapter. This
629 subparagraph does not apply to an association governing a
630 timeshare condominium.
631 a. At least 60 days before a scheduled election, the
632 association shall mail, deliver, or electronically transmit, by
633 separate association mailing or included in another association
634 mailing, delivery, or transmission, including regularly
635 published newsletters, to each unit owner entitled to a vote, a
636 first notice of the date of the election. A unit owner or other
637 eligible person desiring to be a candidate for the board must
638 give written notice of his or her intent to be a candidate to
639 the association at least 40 days before a scheduled election.
640 Together with the written notice and agenda as set forth in
641 subparagraph 3., the association shall mail, deliver, or
642 electronically transmit a second notice of the election to all
643 unit owners entitled to vote, together with a ballot that lists
644 all candidates not less than 14 days or more than 34 days before
645 the date of the election. Upon request of a candidate, an
646 information sheet, no larger than 8 1/2 inches by 11 inches,
647 which must be furnished by the candidate at least 35 days before
648 the election, must be included with the mailing, delivery, or
649 transmission of the ballot, with the costs of mailing, delivery,
650 or electronic transmission and copying to be borne by the
651 association. The association is not liable for the contents of
652 the information sheets prepared by the candidates. In order to
653 reduce costs, the association may print or duplicate the
654 information sheets on both sides of the paper. The division
655 shall by rule establish voting procedures consistent with this
656 sub-subparagraph, including rules establishing procedures for
657 giving notice by electronic transmission and rules providing for
658 the secrecy of ballots. Elections shall be decided by a
659 plurality of ballots cast. There is no quorum requirement;
660 however, at least 20 percent of the eligible voters must cast a
661 ballot in order to have a valid election. A unit owner may not
662 authorize any other person to vote his or her ballot, and any
663 ballots improperly cast are invalid. A unit owner who violates
664 this provision may be fined by the association in accordance
665 with s. 718.303. A unit owner who needs assistance in casting
666 the ballot for the reasons stated in s. 101.051 may obtain such
667 assistance. The regular election must occur on the date of the
668 annual meeting. Notwithstanding this sub-subparagraph, an
669 election is not required unless more candidates file notices of
670 intent to run or are nominated than board vacancies exist.
671 b. Within 90 days after being elected or appointed to the
672 board of an association of a residential condominium, each newly
673 elected or appointed director shall certify in writing to the
674 secretary of the association that he or she has read the
675 association’s declaration of condominium, articles of
676 incorporation, bylaws, and current written policies; that he or
677 she will work to uphold such documents and policies to the best
678 of his or her ability; and that he or she will faithfully
679 discharge his or her fiduciary responsibility to the
680 association’s members. In lieu of this written certification,
681 within 90 days after being elected or appointed to the board,
682 the newly elected or appointed director may submit a certificate
683 of having satisfactorily completed the educational curriculum
684 administered by a division-approved condominium education
685 provider within 1 year before or 90 days after the date of
686 election or appointment. The written certification or
687 educational certificate is valid and does not have to be
688 resubmitted as long as the director serves on the board without
689 interruption. A director of an association of a residential
690 condominium who fails to timely file the written certification
691 or educational certificate is suspended from service on the
692 board until he or she complies with this sub-subparagraph. The
693 board may temporarily fill the vacancy during the period of
694 suspension. The secretary shall cause the association to retain
695 a director’s written certification or educational certificate
696 for inspection by the members for 5 years after a director’s
697 election or the duration of the director’s uninterrupted tenure,
698 whichever is longer. Failure to have such written certification
699 or educational certificate on file does not affect the validity
700 of any board action.
701 c. Any challenge to the election process must be commenced
702 within 60 days after the election results are announced.
703 5. Any approval by unit owners called for by this chapter
704 or the applicable declaration or bylaws, including, but not
705 limited to, the approval requirement in s. 718.111(8), must be
706 made at a duly noticed meeting of unit owners and is subject to
707 all requirements of this chapter or the applicable condominium
708 documents relating to unit owner decisionmaking, except that
709 unit owners may take action by written agreement, without
710 meetings, on matters for which action by written agreement
711 without meetings is expressly allowed by the applicable bylaws
712 or declaration or any law that provides for such action.
713 6. Unit owners may waive notice of specific meetings if
714 allowed by the applicable bylaws or declaration or any law.
715 Notice of meetings of the board of administration, unit owner
716 meetings, except unit owner meetings called to recall board
717 members under paragraph (j), and committee meetings may be given
718 by electronic transmission to unit owners who consent to receive
719 notice by electronic transmission. A unit owner who consents to
720 receiving notices by electronic transmission is solely
721 responsible for removing or bypassing filters that block receipt
722 of mass e-mails emails sent to members on behalf of the
723 association in the course of giving electronic notices.
724 7. Unit owners have the right to participate in meetings of
725 unit owners with reference to all designated agenda items.
726 However, the association may adopt reasonable rules governing
727 the frequency, duration, and manner of unit owner participation.
728 8. A unit owner may tape record or videotape a meeting of
729 the unit owners subject to reasonable rules adopted by the
730 division.
731 9. Unless otherwise provided in the bylaws, any vacancy
732 occurring on the board before the expiration of a term may be
733 filled by the affirmative vote of the majority of the remaining
734 directors, even if the remaining directors constitute less than
735 a quorum, or by the sole remaining director. In the alternative,
736 a board may hold an election to fill the vacancy, in which case
737 the election procedures must conform to sub-subparagraph 4.a.
738 unless the association governs 10 units or fewer and has opted
739 out of the statutory election process, in which case the bylaws
740 of the association control. Unless otherwise provided in the
741 bylaws, a board member appointed or elected under this section
742 shall fill the vacancy for the unexpired term of the seat being
743 filled. Filling vacancies created by recall is governed by
744 paragraph (j) and rules adopted by the division.
745 10. This chapter does not limit the use of general or
746 limited proxies, require the use of general or limited proxies,
747 or require the use of a written ballot or voting machine for any
748 agenda item or election at any meeting of a timeshare
749 condominium association or nonresidential condominium
750 association.
751
752 Notwithstanding subparagraph (b)2. and sub-subparagraph 4.a., an
753 association of 10 or fewer units may, by affirmative vote of a
754 majority of the total voting interests, provide for different
755 voting and election procedures in its bylaws, which may be by a
756 proxy specifically delineating the different voting and election
757 procedures. The different voting and election procedures may
758 provide for elections to be conducted by limited or general
759 proxy.
760 (i) Transfer fees.—An association may not no charge a fee
761 shall be made by the association or any body thereof in
762 connection with the sale, mortgage, lease, sublease, or other
763 transfer of a unit unless the association is required to approve
764 such transfer and a fee for such approval is provided for in the
765 declaration, articles, or bylaws. Any such fee may be preset,
766 but may not in no event may such fee exceed $150 $100 per
767 applicant. For the purpose of calculating the fee, spouses or a
768 parent or parents and any dependent children other than
769 husband/wife or parent/dependent child, which are considered one
770 applicant. However, if the lease or sublease is a renewal of a
771 lease or sublease with the same lessee or sublessee, a charge
772 may not no charge shall be made. Such fees must be adjusted
773 every 5 years in an amount equal to the total of the annual
774 increases occurring in the Consumer Price Index for All Urban
775 Consumers, U.S. City Average, All Items during that 5-year
776 period. The Department of Business and Professional Regulation
777 shall periodically calculate the fees, rounded to the nearest
778 dollar, and publish the amounts, as adjusted, on its website.
779 The foregoing notwithstanding, an association may, if the
780 authority to do so appears in the declaration, articles, or
781 bylaws, an association may require that a prospective lessee
782 place a security deposit, in an amount not to exceed the
783 equivalent of 1 month’s rent, into an escrow account maintained
784 by the association. The security deposit shall protect against
785 damages to the common elements or association property. Payment
786 of interest, claims against the deposit, refunds, and disputes
787 under this paragraph shall be handled in the same fashion as
788 provided in part II of chapter 83.
789 (j) Recall of board members.—Subject to s. 718.301, any
790 member of the board of administration may be recalled and
791 removed from office with or without cause by the vote or
792 agreement in writing by a majority of all the voting interests.
793 A special meeting of the unit owners to recall a member or
794 members of the board of administration may be called by 10
795 percent of the voting interests giving notice of the meeting as
796 required for a meeting of unit owners, and the notice shall
797 state the purpose of the meeting. Electronic transmission may
798 not be used as a method of giving notice of a meeting called in
799 whole or in part for this purpose.
800 1. If the recall is approved by a majority of all voting
801 interests by a vote at a meeting, the recall will be effective
802 as provided in this paragraph. The board shall duly notice and
803 hold a board meeting within 5 full business days after the
804 adjournment of the unit owner meeting to recall one or more
805 board members. Such member or members shall be recalled
806 effective immediately upon conclusion of the board meeting,
807 provided that the recall is facially valid. A recalled member
808 must turn over to the board, within 10 full business days after
809 the vote, any and all records and property of the association in
810 their possession.
811 2. If the proposed recall is by an agreement in writing by
812 a majority of all voting interests, the agreement in writing or
813 a copy thereof shall be served on the association by certified
814 mail or by personal service in the manner authorized by chapter
815 48 and the Florida Rules of Civil Procedure. The board of
816 administration shall duly notice and hold a meeting of the board
817 within 5 full business days after receipt of the agreement in
818 writing. Such member or members shall be recalled effective
819 immediately upon the conclusion of the board meeting, provided
820 that the recall is facially valid. A recalled member must turn
821 over to the board, within 10 full business days, any and all
822 records and property of the association in their possession.
823 3. If the board fails to duly notice and hold a board
824 meeting within 5 full business days after service of an
825 agreement in writing or within 5 full business days after the
826 adjournment of the unit owner recall meeting, the recall is
827 shall be deemed effective and the board members so recalled
828 shall turn over to the board within 10 full business days after
829 the vote any and all records and property of the association.
830 4. If the board fails to duly notice and hold the required
831 meeting or at the conclusion of the meeting determines that the
832 recall is not facially valid, the unit owner representative may
833 file a petition or court action under pursuant to s. 718.1255
834 challenging the board’s failure to act or challenging the
835 board’s determination on facial validity. The petition or action
836 must be filed within 60 days after the expiration of the
837 applicable 5-full-business-day period. The review of a petition
838 or action under this subparagraph is limited to the sufficiency
839 of service on the board and the facial validity of the written
840 agreement or ballots filed.
841 5. If a vacancy occurs on the board as a result of a recall
842 or removal and less than a majority of the board members are
843 removed, the vacancy may be filled by the affirmative vote of a
844 majority of the remaining directors, notwithstanding any
845 provision to the contrary contained in this subsection. If
846 vacancies occur on the board as a result of a recall and a
847 majority or more of the board members are removed, the vacancies
848 shall be filled in accordance with procedural rules to be
849 adopted by the division, which rules need not be consistent with
850 this subsection. The rules must provide procedures governing the
851 conduct of the recall election as well as the operation of the
852 association during the period after a recall but before the
853 recall election.
854 6. A board member who has been recalled may file a petition
855 or court action under pursuant to s. 718.1255 challenging the
856 validity of the recall. The petition or action must be filed
857 within 60 days after the recall. The association and the unit
858 owner representative shall be named as the respondents. The
859 petition or action may challenge the facial validity of the
860 written agreement or ballots filed or the substantial compliance
861 with the procedural requirements for the recall. If the
862 arbitrator or court determines the recall was invalid, the
863 petitioning board member shall immediately be reinstated and the
864 recall is null and void. A board member who is successful in
865 challenging a recall is entitled to recover reasonable attorney
866 fees and costs from the respondents. The arbitrator or court may
867 award reasonable attorney fees and costs to the respondents if
868 they prevail, if the arbitrator or court makes a finding that
869 the petitioner’s claim is frivolous.
870 7. The division or a court of competent jurisdiction may
871 not accept for filing a recall petition or court action, whether
872 filed under pursuant to subparagraph 1., subparagraph 2.,
873 subparagraph 4., or subparagraph 6., when there are 60 or fewer
874 days until the scheduled reelection of the board member sought
875 to be recalled or when 60 or fewer days have elapsed since the
876 election of the board member sought to be recalled.
877 (k) Alternative dispute resolution Arbitration.—There must
878 shall be a provision for alternative dispute resolution
879 mandatory nonbinding arbitration as provided for in s. 718.1255
880 for any residential condominium.
881 (p) Service providers; conflicts of interest.—An
882 association, which is not a timeshare condominium association,
883 may not employ or contract with any service provider that is
884 owned or operated by a board member or with any person who has a
885 financial relationship with a board member or officer, or a
886 relative within the third degree of consanguinity by blood or
887 marriage of a board member or officer. This paragraph does not
888 apply to a service provider in which a board member or officer,
889 or a relative within the third degree of consanguinity by blood
890 or marriage of a board member or officer, owns less than 1
891 percent of the equity shares.
892 Section 5. Subsection (8) of section 718.113, Florida
893 Statutes, is amended to read:
894 718.113 Maintenance; limitation upon improvement; display
895 of flag; hurricane shutters and protection; display of religious
896 decorations.—
897 (8) The Legislature finds that the use of electric and
898 natural gas fuel vehicles conserves and protects the state’s
899 environmental resources, provides significant economic savings
900 to drivers, and serves an important public interest. The
901 participation of condominium associations is essential to the
902 state’s efforts to conserve and protect the state’s
903 environmental resources and provide economic savings to drivers.
904 For purposes of this subsection, the term “natural gas fuel” has
905 the same meaning as in s. 206.9951, and the term “natural gas
906 fuel vehicle” means any motor vehicle, as defined in s. 320.01,
907 that is powered by natural gas fuel. Therefore, the installation
908 of an electric vehicle charging station or a natural gas fuel
909 station shall be governed as follows:
910 (a) A declaration of condominium or restrictive covenant
911 may not prohibit or be enforced so as to prohibit any unit owner
912 from installing an electric vehicle charging station or a
913 natural gas fuel station within the boundaries of the unit
914 owner’s limited common element or exclusively designated parking
915 area. The board of administration of a condominium association
916 may not prohibit a unit owner from installing an electric
917 vehicle charging station for an electric vehicle, as defined in
918 s. 320.01, or a natural gas fuel station for a natural gas fuel
919 vehicle within the boundaries of his or her limited common
920 element or exclusively designated parking area. The installation
921 of such charging or fuel stations are subject to the provisions
922 of this subsection.
923 (b) The installation may not cause irreparable damage to
924 the condominium property.
925 (c) The electricity for the electric vehicle charging
926 station or natural gas fuel station must be separately metered
927 or metered by an embedded meter and payable by the unit owner
928 installing such charging or fuel station or by his or her
929 successor.
930 (d) The cost for supply and storage of the natural gas fuel
931 must be paid by the unit owner installing the natural gas fuel
932 station or by his or her successor.
933 (e)(d) The unit owner who is installing an electric vehicle
934 charging station or a natural gas fuel station is responsible
935 for the costs of installation, operation, maintenance, and
936 repair, including, but not limited to, hazard and liability
937 insurance. The association may enforce payment of such costs
938 under pursuant to s. 718.116.
939 (f)(e) If the unit owner or his or her successor decides
940 there is no longer a need for the electric electronic vehicle
941 charging station or natural gas fuel station, such person is
942 responsible for the cost of removal of such the electronic
943 vehicle charging or fuel station. The association may enforce
944 payment of such costs under pursuant to s. 718.116.
945 (g) The unit owner installing, maintaining, or removing the
946 electric vehicle charging station or natural gas fuel station is
947 responsible for complying with all federal, state, or local laws
948 and regulations applicable to such installation, maintenance, or
949 removal.
950 (h)(f) The association may require the unit owner to:
951 1. Comply with bona fide safety requirements, consistent
952 with applicable building codes or recognized safety standards,
953 for the protection of persons and property.
954 2. Comply with reasonable architectural standards adopted
955 by the association that govern the dimensions, placement, or
956 external appearance of the electric vehicle charging station or
957 natural gas fuel station, provided that such standards may not
958 prohibit the installation of such charging or fuel station or
959 substantially increase the cost thereof.
960 3. Engage the services of a licensed and registered firm
961 electrical contractor or engineer familiar with the installation
962 or removal and core requirements of an electric vehicle charging
963 station or a natural gas fuel station.
964 4. Provide a certificate of insurance naming the
965 association as an additional insured on the owner’s insurance
966 policy for any claim related to the installation, maintenance,
967 or use of the electric vehicle charging station or natural gas
968 fuel station within 14 days after receiving the association’s
969 approval to install such charging or fuel station or notice to
970 provide such a certificate.
971 5. Reimburse the association for the actual cost of any
972 increased insurance premium amount attributable to the electric
973 vehicle charging station or natural gas fuel station within 14
974 days after receiving the association’s insurance premium
975 invoice.
976 (i)(g) The association provides an implied easement across
977 the common elements of the condominium property to the unit
978 owner for purposes of the installation of the electric vehicle
979 charging station or natural gas fuel station installation, and
980 the furnishing of electrical power or natural gas fuel supply,
981 including any necessary equipment, to such charging or fuel
982 station, subject to the requirements of this subsection.
983 Section 6. Subsection (16) of section 718.117, Florida
984 Statutes, is amended to read:
985 718.117 Termination of condominium.—
986 (16) RIGHT TO CONTEST.—A unit owner or lienor may contest a
987 plan of termination by initiating a petition in accordance with
988 for mandatory nonbinding arbitration pursuant to s. 718.1255
989 within 90 days after the date the plan is recorded. A unit owner
990 or lienor may only contest the fairness and reasonableness of
991 the apportionment of the proceeds from the sale among the unit
992 owners, that the liens of the first mortgages of unit owners
993 other than the bulk owner have not or will not be satisfied to
994 the extent required by subsection (3), or that the required vote
995 to approve the plan was not obtained. A unit owner or lienor who
996 does not contest the plan within the 90-day period is barred
997 from asserting or prosecuting a claim against the association,
998 the termination trustee, any unit owner, or any successor in
999 interest to the condominium property. In an action contesting a
1000 plan of termination, the person contesting the plan has the
1001 burden of pleading and proving that the apportionment of the
1002 proceeds from the sale among the unit owners was not fair and
1003 reasonable or that the required vote was not obtained. The
1004 apportionment of sale proceeds is presumed fair and reasonable
1005 if it was determined pursuant to the methods prescribed in
1006 subsection (12). If the petition is filed with the division for
1007 arbitration, the arbitrator shall determine the rights and
1008 interests of the parties in the apportionment of the sale
1009 proceeds. If the arbitrator determines that the apportionment of
1010 sales proceeds is not fair and reasonable, the arbitrator may
1011 void the plan or may modify the plan to apportion the proceeds
1012 in a fair and reasonable manner pursuant to this section based
1013 upon the proceedings and order the modified plan of termination
1014 to be implemented. If the arbitrator determines that the plan
1015 was not properly approved, or that the procedures to adopt the
1016 plan were not properly followed, the arbitrator may void the
1017 plan or grant other relief it deems just and proper. The
1018 arbitrator shall automatically void the plan upon a finding that
1019 any of the disclosures required in subparagraph (3)(c)5. are
1020 omitted, misleading, incomplete, or inaccurate. Any challenge to
1021 a plan, other than a challenge that the required vote was not
1022 obtained, does not affect title to the condominium property or
1023 the vesting of the condominium property in the trustee, but
1024 shall only be a claim against the proceeds of the plan. In any
1025 such action, the prevailing party shall recover reasonable
1026 attorney fees and costs.
1027 Section 7. Subsections (2) and (4) of section 718.121,
1028 Florida Statutes, are amended to read:
1029 718.121 Liens.—
1030 (2) Labor performed on or materials furnished to a unit may
1031 shall not be the basis for the filing of a lien under pursuant
1032 to part I of chapter 713, the Construction Lien Law, against the
1033 unit or condominium parcel of any unit owner not expressly
1034 consenting to or requesting the labor or materials. Labor
1035 performed on or materials furnished for the installation of a
1036 natural gas fuel station or an electric electronic vehicle
1037 charging station under pursuant to s. 718.113(8) may not be the
1038 basis for filing a lien under part I of chapter 713 against the
1039 association, but such a lien may be filed against the unit
1040 owner. Labor performed on or materials furnished to the common
1041 elements are not the basis for a lien on the common elements,
1042 but if authorized by the association, the labor or materials are
1043 deemed to be performed or furnished with the express consent of
1044 each unit owner and may be the basis for the filing of a lien
1045 against all condominium parcels in the proportions for which the
1046 owners are liable for common expenses.
1047 (4) Except as otherwise provided in this chapter, no lien
1048 may be filed by the association against a condominium unit until
1049 30 days after the date on which a notice of intent to file a
1050 lien has been delivered to the owner by registered or certified
1051 mail, return receipt requested, and by first-class United States
1052 mail to the owner at his or her last address as reflected in the
1053 records of the association, if the address is within the United
1054 States, and delivered to the owner at the address of the unit if
1055 the owner’s address as reflected in the records of the
1056 association is not the unit address. If the address reflected in
1057 the records is outside the United States, sending the notice to
1058 that address and to the unit address by first-class United
1059 States mail is sufficient. Delivery of the Notice is shall be
1060 deemed to have been delivered given upon mailing as required by
1061 this subsection, provided that it is. The notice must be in
1062 substantially the following form:
1063
1064 NOTICE OF INTENT
1065 TO RECORD A CLAIM OF LIEN
1066
1067 RE: Unit .... of ...(name of association)...
1068
1069 The following amounts are currently due on your
1070 account to ...(name of association)..., and must be
1071 paid within 30 days after your receipt of this letter.
1072 This letter shall serve as the association’s notice of
1073 intent to record a Claim of Lien against your property
1074 no sooner than 30 days after your receipt of this
1075 letter, unless you pay in full the amounts set forth
1076 below:
1077
1078 Maintenance due ...(dates)... $.....
1079 Late fee, if applicable $.....
1080 Interest through ...(dates)...* $.....
1081 Certified mail charges ...(dates)... $.....
1082 Other costs $.....
1083 TOTAL OUTSTANDING $.....
1084
1085 *Interest accrues at the rate of .... percent per annum.
1086 Section 8. Section 718.1255, Florida Statutes, is amended
1087 to read:
1088 718.1255 Alternative dispute resolution; voluntary
1089 mediation; mandatory nonbinding arbitration; legislative
1090 findings.—
1091 (1) DEFINITIONS.—As used in this section, the term
1092 “dispute” means any disagreement between two or more parties
1093 that involves:
1094 (a) The authority of the board of directors, under this
1095 chapter or association document, to:
1096 1. Require any owner to take any action, or not to take any
1097 action, involving that owner’s unit or the appurtenances
1098 thereto.
1099 2. Alter or add to a common area or element.
1100 (b) The failure of a governing body, when required by this
1101 chapter or an association document, to:
1102 1. Properly conduct elections.
1103 2. Give adequate notice of meetings or other actions.
1104 3. Properly conduct meetings.
1105 4. Allow inspection of books and records.
1106 (c) A plan of termination pursuant to s. 718.117.
1107
1108 “Dispute” does not include any disagreement that primarily
1109 involves: title to any unit or common element; the
1110 interpretation or enforcement of any warranty; the levy of a fee
1111 or assessment, or the collection of an assessment levied against
1112 a party; the eviction or other removal of a tenant from a unit;
1113 alleged breaches of fiduciary duty by one or more directors; or
1114 claims for damages to a unit based upon the alleged failure of
1115 the association to maintain the common elements or condominium
1116 property.
1117 (2) VOLUNTARY MEDIATION.—Voluntary Mediation through
1118 Citizen Dispute Settlement Centers as provided for in s. 44.201
1119 is encouraged.
1120 (3) LEGISLATIVE FINDINGS.—
1121 (a) The Legislature finds that unit owners are frequently
1122 at a disadvantage when litigating against an association.
1123 Specifically, a condominium association, with its statutory
1124 assessment authority, is often more able to bear the costs and
1125 expenses of litigation than the unit owner who must rely on his
1126 or her own financial resources to satisfy the costs of
1127 litigation against the association.
1128 (b) The Legislature finds that alternative dispute
1129 resolution has been making progress in reducing court dockets
1130 and trials and in offering a more efficient, cost-effective
1131 option to court litigation. However, the Legislature also finds
1132 that alternative dispute resolution should not be used as a
1133 mechanism to encourage the filing of frivolous or nuisance
1134 suits.
1135 (c) There exists a need to develop a flexible means of
1136 alternative dispute resolution that directs disputes to the most
1137 efficient means of resolution.
1138 (d) The high cost and significant delay of circuit court
1139 litigation faced by unit owners in the state can be alleviated
1140 by requiring nonbinding arbitration and mediation in appropriate
1141 cases, thereby reducing delay and attorney attorney’s fees while
1142 preserving the right of either party to have its case heard by a
1143 jury, if applicable, in a court of law.
1144 (4) MANDATORY NONBINDING ARBITRATION AND MEDIATION OF
1145 DISPUTES.—The Division of Florida Condominiums, Timeshares, and
1146 Mobile Homes of the Department of Business and Professional
1147 Regulation may employ full-time attorneys to act as arbitrators
1148 to conduct the arbitration hearings provided by this chapter.
1149 The division may also certify attorneys who are not employed by
1150 the division to act as arbitrators to conduct the arbitration
1151 hearings provided by this chapter. A No person may not be
1152 employed by the department as a full-time arbitrator unless he
1153 or she is a member in good standing of The Florida Bar. A person
1154 may only be certified by the division to act as an arbitrator if
1155 he or she has been a member in good standing of The Florida Bar
1156 for at least 5 years and has mediated or arbitrated at least 10
1157 disputes involving condominiums in this state during the 3 years
1158 immediately preceding the date of application, mediated or
1159 arbitrated at least 30 disputes in any subject area in this
1160 state during the 3 years immediately preceding the date of
1161 application, or attained board certification in real estate law
1162 or condominium and planned development law from The Florida Bar.
1163 Arbitrator certification is valid for 1 year. An arbitrator who
1164 does not maintain the minimum qualifications for initial
1165 certification may not have his or her certification renewed. The
1166 department may not enter into a legal services contract for an
1167 arbitration hearing under this chapter with an attorney who is
1168 not a certified arbitrator unless a certified arbitrator is not
1169 available within 50 miles of the dispute. The department shall
1170 adopt rules of procedure to govern such arbitration hearings
1171 including mediation incident thereto. The decision of an
1172 arbitrator is shall be final; however, a decision is shall not
1173 be deemed final agency action. Nothing in this provision shall
1174 be construed to foreclose parties from proceeding in a trial de
1175 novo unless the parties have agreed that the arbitration is
1176 binding. If judicial proceedings are initiated, the final
1177 decision of the arbitrator is shall be admissible in evidence in
1178 the trial de novo.
1179 (a) Before Prior to the institution of court litigation, a
1180 party to a dispute, other than an election or recall dispute,
1181 shall either petition the division for nonbinding arbitration or
1182 initiate presuit mediation as provided in subsection (5).
1183 Arbitration is binding on the parties if all parties in
1184 arbitration agree to be bound in a writing filed in arbitration.
1185 The petition must be accompanied by a filing fee in the amount
1186 of $50. Filing fees collected under this section must be used to
1187 defray the expenses of the alternative dispute resolution
1188 program.
1189 (b) The petition must recite, and have attached thereto,
1190 supporting proof that the petitioner gave the respondents:
1191 1. Advance written notice of the specific nature of the
1192 dispute;
1193 2. A demand for relief, and a reasonable opportunity to
1194 comply or to provide the relief; and
1195 3. Notice of the intention to file an arbitration petition
1196 or other legal action in the absence of a resolution of the
1197 dispute.
1198
1199 Failure to include the allegations or proof of compliance with
1200 these prerequisites requires dismissal of the petition without
1201 prejudice.
1202 (c) Upon receipt, the petition shall be promptly reviewed
1203 by the division to determine the existence of a dispute and
1204 compliance with the requirements of paragraphs (a) and (b). If
1205 emergency relief is required and is not available through
1206 arbitration, a motion to stay the arbitration may be filed. The
1207 motion must be accompanied by a verified petition alleging facts
1208 that, if proven, would support entry of a temporary injunction,
1209 and if an appropriate motion and supporting papers are filed,
1210 the division may abate the arbitration pending a court hearing
1211 and disposition of a motion for temporary injunction.
1212 (d) Upon determination by the division that a dispute
1213 exists and that the petition substantially meets the
1214 requirements of paragraphs (a) and (b) and any other applicable
1215 rules, the division shall assign or enter into a contract with
1216 an arbitrator and serve a copy of the petition upon all
1217 respondents. The arbitrator shall conduct a hearing within 30
1218 days after being assigned or entering into a contract unless the
1219 petition is withdrawn or a continuance is granted for good cause
1220 shown.
1221 (e) Before or after the filing of the respondents’ answer
1222 to the petition, any party may request that the arbitrator refer
1223 the case to mediation under this section and any rules adopted
1224 by the division. Upon receipt of a request for mediation, the
1225 division shall promptly contact the parties to determine if
1226 there is agreement that mediation would be appropriate. If all
1227 parties agree, the dispute must be referred to mediation.
1228 Notwithstanding a lack of an agreement by all parties, the
1229 arbitrator may refer a dispute to mediation at any time.
1230 (f) Upon referral of a case to mediation, the parties must
1231 select a mutually acceptable mediator. To assist in the
1232 selection, the arbitrator shall provide the parties with a list
1233 of both volunteer and paid mediators that have been certified by
1234 the division under s. 718.501. If the parties are unable to
1235 agree on a mediator within the time allowed by the arbitrator,
1236 the arbitrator shall appoint a mediator from the list of
1237 certified mediators. If a case is referred to mediation, the
1238 parties shall attend a mediation conference, as scheduled by the
1239 parties and the mediator. If any party fails to attend a duly
1240 noticed mediation conference, without the permission or approval
1241 of the arbitrator or mediator, the arbitrator must impose
1242 sanctions against the party, including the striking of any
1243 pleadings filed, the entry of an order of dismissal or default
1244 if appropriate, and the award of costs and attorney fees
1245 incurred by the other parties. Unless otherwise agreed to by the
1246 parties or as provided by order of the arbitrator, a party is
1247 deemed to have appeared at a mediation conference by the
1248 physical presence of the party or its representative having full
1249 authority to settle without further consultation, provided that
1250 an association may comply by having one or more representatives
1251 present with full authority to negotiate a settlement and
1252 recommend that the board of administration ratify and approve
1253 such a settlement within 5 days from the date of the mediation
1254 conference. The parties shall share equally the expense of
1255 mediation, unless they agree otherwise.
1256 (g) The purpose of mediation as provided for by this
1257 section is to present the parties with an opportunity to resolve
1258 the underlying dispute in good faith, and with a minimum
1259 expenditure of time and resources.
1260 (h) Mediation proceedings must generally be conducted in
1261 accordance with the Florida Rules of Civil Procedure, and these
1262 proceedings are privileged and confidential to the same extent
1263 as court-ordered mediation. Persons who are not parties to the
1264 dispute are not allowed to attend the mediation conference
1265 without the consent of all parties, with the exception of
1266 counsel for the parties and corporate representatives designated
1267 to appear for a party. If the mediator declares an impasse after
1268 a mediation conference has been held, the arbitration proceeding
1269 terminates, unless all parties agree in writing to continue the
1270 arbitration proceeding, in which case the arbitrator’s decision
1271 shall be binding or nonbinding, as agreed upon by the parties;
1272 in the arbitration proceeding, the arbitrator shall not consider
1273 any evidence relating to the unsuccessful mediation except in a
1274 proceeding to impose sanctions for failure to appear at the
1275 mediation conference. If the parties do not agree to continue
1276 arbitration, the arbitrator shall enter an order of dismissal,
1277 and either party may institute a suit in a court of competent
1278 jurisdiction. The parties may seek to recover any costs and
1279 attorney fees incurred in connection with arbitration and
1280 mediation proceedings under this section as part of the costs
1281 and fees that may be recovered by the prevailing party in any
1282 subsequent litigation.
1283 (i) Arbitration shall be conducted according to rules
1284 adopted by the division. The filing of a petition for
1285 arbitration shall toll the applicable statute of limitations.
1286 (j) At the request of any party to the arbitration, the
1287 arbitrator shall issue subpoenas for the attendance of witnesses
1288 and the production of books, records, documents, and other
1289 evidence and any party on whose behalf a subpoena is issued may
1290 apply to the court for orders compelling such attendance and
1291 production. Subpoenas shall be served and shall be enforceable
1292 in the manner provided by the Florida Rules of Civil Procedure.
1293 Discovery may, in the discretion of the arbitrator, be permitted
1294 in the manner provided by the Florida Rules of Civil Procedure.
1295 Rules adopted by the division may authorize any reasonable
1296 sanctions except contempt for a violation of the arbitration
1297 procedural rules of the division or for the failure of a party
1298 to comply with a reasonable nonfinal order issued by an
1299 arbitrator which is not under judicial review.
1300 (k) The arbitration decision shall be rendered within 30
1301 days after the hearing and presented to the parties in writing.
1302 An arbitration decision is final in those disputes in which the
1303 parties have agreed to be bound. An arbitration decision is also
1304 final if a complaint for a trial de novo is not filed in a court
1305 of competent jurisdiction in which the condominium is located
1306 within 30 days. The right to file for a trial de novo entitles
1307 the parties to file a complaint in the appropriate trial court
1308 for a judicial resolution of the dispute. The prevailing party
1309 in an arbitration proceeding shall be awarded the costs of the
1310 arbitration and reasonable attorney fees in an amount determined
1311 by the arbitrator. Such an award shall include the costs and
1312 reasonable attorney fees incurred in the arbitration proceeding
1313 as well as the costs and reasonable attorney fees incurred in
1314 preparing for and attending any scheduled mediation. An
1315 arbitrator’s failure to render a written decision within 30 days
1316 after the hearing may result in the cancellation of his or her
1317 arbitration certification.
1318 (l) The party who files a complaint for a trial de novo
1319 shall be assessed the other party’s arbitration costs, court
1320 costs, and other reasonable costs, including attorney fees,
1321 investigation expenses, and expenses for expert or other
1322 testimony or evidence incurred after the arbitration hearing if
1323 the judgment upon the trial de novo is not more favorable than
1324 the arbitration decision. If the judgment is more favorable, the
1325 party who filed a complaint for trial de novo shall be awarded
1326 reasonable court costs and attorney fees.
1327 (m) Any party to an arbitration proceeding may enforce an
1328 arbitration award by filing a petition in a court of competent
1329 jurisdiction in which the condominium is located. A petition may
1330 not be granted unless the time for appeal by the filing of a
1331 complaint for trial de novo has expired. If a complaint for a
1332 trial de novo has been filed, a petition may not be granted with
1333 respect to an arbitration award that has been stayed. If the
1334 petition for enforcement is granted, the petitioner shall
1335 recover reasonable attorney fees and costs incurred in enforcing
1336 the arbitration award. A mediation settlement may also be
1337 enforced through the county or circuit court, as applicable, and
1338 any costs and fees incurred in the enforcement of a settlement
1339 agreement reached at mediation must be awarded to the prevailing
1340 party in any enforcement action.
1341 (5) PRESUIT MEDIATION.—In lieu of the initiation of
1342 nonbinding arbitration as provided in subsections (1)-(4), a
1343 party may submit a dispute to presuit mediation in accordance
1344 with s. 720.311; however, election and recall disputes are not
1345 eligible for mediation and such disputes must be arbitrated by
1346 the division or filed in a court of competent jurisdiction.
1347 (6) DISPUTES INVOLVING ELECTION IRREGULARITIES.—Every
1348 arbitration petition received by the division and required to be
1349 filed under this section challenging the legality of the
1350 election of any director of the board of administration must be
1351 handled on an expedited basis in the manner provided by the
1352 division’s rules for recall arbitration disputes.
1353 (7)(6) APPLICABILITY.—This section does not apply to a
1354 nonresidential condominium unless otherwise specifically
1355 provided for in the declaration of the nonresidential
1356 condominium.
1357 Section 9. Section 718.1265, Florida Statutes, is amended
1358 to read:
1359 718.1265 Association emergency powers.—
1360 (1) To the extent allowed by law, and unless specifically
1361 prohibited by the declaration of condominium, the articles, or
1362 the bylaws of an association, and consistent with the provisions
1363 of s. 617.0830, the board of administration, in response to
1364 damage or injury caused by or anticipated in connection with an
1365 emergency, as defined in s. 252.34(4), event for which a state
1366 of emergency is declared pursuant to s. 252.36 in the locale in
1367 which the condominium is located, may, but is not required to,
1368 exercise the following powers:
1369 (a) Conduct board meetings, committee meetings, elections,
1370 and membership meetings, in whole or in part, by telephone,
1371 real-time videoconferencing, or similar real-time electronic or
1372 video communication with notice given as is practicable. Such
1373 notice may be given in any practicable manner, including
1374 publication, radio, United States mail, the Internet, electronic
1375 transmission, public service announcements, and conspicuous
1376 posting on the condominium property or association property or
1377 any other means the board deems reasonable under the
1378 circumstances. Notice of board decisions also may be
1379 communicated as provided in this paragraph.
1380 (b) Cancel and reschedule any association meeting.
1381 (c) Name as assistant officers persons who are not
1382 directors, which assistant officers shall have the same
1383 authority as the executive officers to whom they are assistants
1384 during the state of emergency to accommodate the incapacity or
1385 unavailability of any officer of the association.
1386 (d) Relocate the association’s principal office or
1387 designate alternative principal offices.
1388 (e) Enter into agreements with local counties and
1389 municipalities to assist counties and municipalities with debris
1390 removal.
1391 (f) Implement a disaster plan or an emergency plan before,
1392 during, or immediately following the event for which a state of
1393 emergency is declared which may include, but is not limited to,
1394 shutting down or off elevators; electricity; water, sewer, or
1395 security systems; or air conditioners.
1396 (g) Based upon advice of emergency management officials or
1397 public health officials, or upon the advice of licensed
1398 professionals retained by or otherwise available to the board,
1399 determine any portion of the condominium property or association
1400 property unavailable for entry or occupancy by unit owners,
1401 family members, tenants, guests, agents, or invitees to protect
1402 the health, safety, or welfare of such persons.
1403 (h) Require the evacuation of the condominium property in
1404 the event of a mandatory evacuation order in the locale in which
1405 the condominium is located. Should any unit owner or other
1406 occupant of a condominium fail or refuse to evacuate the
1407 condominium property or association property where the board has
1408 required evacuation, the association shall be immune from
1409 liability or injury to persons or property arising from such
1410 failure or refusal.
1411 (i) Based upon advice of emergency management officials or
1412 public health officials, or upon the advice of licensed
1413 professionals retained by or otherwise available to the board,
1414 determine whether the condominium property, association
1415 property, or any portion thereof can be safely inhabited,
1416 accessed, or occupied. However, such determination is not
1417 conclusive as to any determination of habitability pursuant to
1418 the declaration.
1419 (j) Mitigate further damage, injury, or contagion,
1420 including taking action to contract for the removal of debris
1421 and to prevent or mitigate the spread of fungus or contagion,
1422 including, but not limited to, mold or mildew, by removing and
1423 disposing of wet drywall, insulation, carpet, cabinetry, or
1424 other fixtures on or within the condominium property, even if
1425 the unit owner is obligated by the declaration or law to insure
1426 or replace those fixtures and to remove personal property from a
1427 unit.
1428 (k) Contract, on behalf of any unit owner or owners, for
1429 items or services for which the owners are otherwise
1430 individually responsible, but which are necessary to prevent
1431 further injury, contagion, or damage to the condominium property
1432 or association property. In such event, the unit owner or owners
1433 on whose behalf the board has contracted are responsible for
1434 reimbursing the association for the actual costs of the items or
1435 services, and the association may use its lien authority
1436 provided by s. 718.116 to enforce collection of the charges.
1437 Without limitation, such items or services may include the
1438 drying of units, the boarding of broken windows or doors, and
1439 the replacement of damaged air conditioners or air handlers to
1440 provide climate control in the units or other portions of the
1441 property, and the sanitizing of the condominium property or
1442 association property, as applicable.
1443 (l) Regardless of any provision to the contrary and even if
1444 such authority does not specifically appear in the declaration
1445 of condominium, articles, or bylaws of the association, levy
1446 special assessments without a vote of the owners.
1447 (m) Without unit owners’ approval, borrow money and pledge
1448 association assets as collateral to fund emergency repairs and
1449 carry out the duties of the association when operating funds are
1450 insufficient. This paragraph does not limit the general
1451 authority of the association to borrow money, subject to such
1452 restrictions as are contained in the declaration of condominium,
1453 articles, or bylaws of the association.
1454 (2) The special powers authorized under subsection (1)
1455 shall be limited to that time reasonably necessary to protect
1456 the health, safety, and welfare of the association and the unit
1457 owners and the unit owners’ family members, tenants, guests,
1458 agents, or invitees and shall be reasonably necessary to
1459 mitigate further damage, injury, or contagion and make emergency
1460 repairs.
1461 (3) Notwithstanding paragraphs (1)(f)-(i), during a state
1462 of emergency declared by executive order or proclamation of the
1463 Governor pursuant to s. 252.36, an association may not prohibit
1464 unit owners, tenants, guests, agents, or invitees of a unit
1465 owner from accessing the unit and the common elements and
1466 limited common elements appurtenant thereto for the purposes of
1467 ingress to and egress from the unit and when access is necessary
1468 in connection with:
1469 (a) The sale, lease, or other transfer of title of a unit;
1470 or
1471 (b) The habitability of the unit or for the health and
1472 safety of such person unless a governmental order or
1473 determination, or a public health directive from the Centers for
1474 Disease Control and Prevention, has been issued prohibiting such
1475 access to the unit. Any such access is subject to reasonable
1476 restrictions adopted by the association.
1477 Section 10. Subsection (3) of section 718.202, Florida
1478 Statutes, is amended to read:
1479 718.202 Sales or reservation deposits prior to closing.—
1480 (3) If the contract for sale of the condominium unit so
1481 provides, the developer may withdraw escrow funds in excess of
1482 10 percent of the purchase price from the special account
1483 required by subsection (2) when the construction of improvements
1484 has begun. He or she may use the funds for the actual costs
1485 incurred by the developer in the actual construction and
1486 development of the condominium property in which the unit to be
1487 sold is located. For purposes of this subsection, the term
1488 “actual costs” includes, but is not limited to, expenditures for
1489 demolition, site clearing, permit fees, impact fees, and utility
1490 reservation fees, as well as architectural, engineering, and
1491 surveying fees that directly relate to construction and
1492 development of the condominium property. However, no part of
1493 these funds may be used for salaries, commissions, or expenses
1494 of salespersons; or for advertising, marketing, or promotional
1495 purposes; or for loan fees and costs, principal and interest on
1496 loans, attorney fees, accounting fees, or insurance costs. A
1497 contract which permits use of the advance payments for these
1498 purposes shall include the following legend conspicuously
1499 printed or stamped in boldfaced type on the first page of the
1500 contract and immediately above the place for the signature of
1501 the buyer: ANY PAYMENT IN EXCESS OF 10 PERCENT OF THE PURCHASE
1502 PRICE MADE TO DEVELOPER PRIOR TO CLOSING PURSUANT TO THIS
1503 CONTRACT MAY BE USED FOR CONSTRUCTION PURPOSES BY THE DEVELOPER.
1504 Section 11. Subsection (1) and paragraph (b) of subsection
1505 (3) of section 718.303, Florida Statutes, are amended to read:
1506 718.303 Obligations of owners and occupants; remedies.—
1507 (1) Each unit owner, each tenant and other invitee, and
1508 each association is governed by, and must comply with the
1509 provisions of, this chapter, the declaration, the documents
1510 creating the association, and the association bylaws which are
1511 shall be deemed expressly incorporated into any lease of a unit.
1512 Actions at law or in equity for damages or for injunctive
1513 relief, or both, for failure to comply with these provisions may
1514 be brought by the association or by a unit owner against:
1515 (a) The association.
1516 (b) A unit owner.
1517 (c) Directors designated by the developer, for actions
1518 taken by them before control of the association is assumed by
1519 unit owners other than the developer.
1520 (d) Any director who willfully and knowingly fails to
1521 comply with these provisions.
1522 (e) Any tenant leasing a unit, and any other invitee
1523 occupying a unit.
1524
1525 The prevailing party in any such action or in any action in
1526 which the purchaser claims a right of voidability based upon
1527 contractual provisions as required in s. 718.503(1)(a) is
1528 entitled to recover reasonable attorney attorney’s fees. A unit
1529 owner prevailing in an action between the association and the
1530 unit owner under this subsection section, in addition to
1531 recovering his or her reasonable attorney attorney’s fees, may
1532 recover additional amounts as determined by the court to be
1533 necessary to reimburse the unit owner for his or her share of
1534 assessments levied by the association to fund its expenses of
1535 the litigation. This relief does not exclude other remedies
1536 provided by law. Actions arising under this subsection are not
1537 considered may not be deemed to be actions for specific
1538 performance.
1539 (3) The association may levy reasonable fines for the
1540 failure of the owner of the unit or its occupant, licensee, or
1541 invitee to comply with any provision of the declaration, the
1542 association bylaws, or reasonable rules of the association. A
1543 fine may not become a lien against a unit. A fine may be levied
1544 by the board on the basis of each day of a continuing violation,
1545 with a single notice and opportunity for hearing before a
1546 committee as provided in paragraph (b). However, the fine may
1547 not exceed $100 per violation, or $1,000 in the aggregate.
1548 (b) A fine or suspension levied by the board of
1549 administration may not be imposed unless the board first
1550 provides at least 14 days’ written notice to the unit owner and,
1551 if applicable, any tenant occupant, licensee, or invitee of the
1552 unit owner sought to be fined or suspended, and an opportunity
1553 for a hearing before a committee of at least three members
1554 appointed by the board who are not officers, directors, or
1555 employees of the association, or the spouse, parent, child,
1556 brother, or sister of an officer, director, or employee. The
1557 role of the committee is limited to determining whether to
1558 confirm or reject the fine or suspension levied by the board. If
1559 the committee does not approve the proposed fine or suspension
1560 by majority vote, the fine or suspension may not be imposed. If
1561 the proposed fine or suspension is approved by the committee,
1562 the fine payment is due 5 days after notice of the approved fine
1563 is provided to the unit owner and, if applicable, to any tenant,
1564 licensee, or invitee of the unit owner the date of the committee
1565 meeting at which the fine is approved. The association must
1566 provide written notice of such fine or suspension by mail or
1567 hand delivery to the unit owner and, if applicable, to any
1568 tenant, licensee, or invitee of the unit owner.
1569 Section 12. Subsection (5) is added to section 718.405,
1570 Florida Statutes, to read:
1571 718.405 Multicondominiums; multicondominium associations.—
1572 (5) This section does not prevent or restrict a
1573 multicondominium association from adopting a consolidated or
1574 combined declaration of condominium if such declaration complies
1575 with s. 718.104 and does not serve to merge the condominiums or
1576 change the legal descriptions of the condominium parcels as set
1577 forth in s. 718.109, unless accomplished in accordance with law.
1578 This section is intended to clarify existing law and applies to
1579 associations existing on July 1, 2021.
1580 Section 13. Section 718.501, Florida Statutes, is amended
1581 to read:
1582 718.501 Authority, responsibility, and duties of Division
1583 of Florida Condominiums, Timeshares, and Mobile Homes.—
1584 (1) As used in this section, the term “financial issue”
1585 means an issue related to operating budgets; reserve schedules;
1586 accounting records maintained under s. 718.111(12)(a)11.;
1587 notices of budget meetings and minutes of meetings discussing
1588 budget or financial issues; assessments for common expenses,
1589 fees, or fines; the commingling of funds; and any other record
1590 necessary to determine the revenues and expenses of the
1591 association. The division may adopt rules to further specify
1592 what is included within the meaning of the term.
1593 (2)(1) The division may enforce and ensure compliance with
1594 the provisions of this chapter and rules relating to the
1595 development, construction, sale, lease, ownership, operation,
1596 and management of residential condominium units. In performing
1597 its duties, the division has complete jurisdiction to
1598 investigate complaints and enforce compliance with respect to
1599 associations that are still under developer control or the
1600 control of a bulk assignee or bulk buyer pursuant to part VII of
1601 this chapter and complaints against developers, bulk assignees,
1602 or bulk buyers involving improper turnover or failure to
1603 turnover, pursuant to s. 718.301. However, after turnover has
1604 occurred, the division has jurisdiction to investigate
1605 complaints related only to financial issues, elections, and the
1606 maintenance of and unit owner access to association records
1607 under pursuant to s. 718.111(12).
1608 (a)1. The division may make necessary public or private
1609 investigations within or outside this state to determine whether
1610 any person has violated this chapter or any rule or order
1611 hereunder, to aid in the enforcement of this chapter, or to aid
1612 in the adoption of rules or forms.
1613 2. The division may submit any official written report,
1614 worksheet, or other related paper, or a duly certified copy
1615 thereof, compiled, prepared, drafted, or otherwise made by and
1616 duly authenticated by a financial examiner or analyst to be
1617 admitted as competent evidence in any hearing in which the
1618 financial examiner or analyst is available for cross-examination
1619 and attests under oath that such documents were prepared as a
1620 result of an examination or inspection conducted pursuant to
1621 this chapter.
1622 (b) The division may require or permit any person to file a
1623 statement in writing, under oath or otherwise, as the division
1624 determines, as to the facts and circumstances concerning a
1625 matter to be investigated.
1626 (c) For the purpose of any investigation under this
1627 chapter, the division director or any officer or employee
1628 designated by the division director may administer oaths or
1629 affirmations, subpoena witnesses and compel their attendance,
1630 take evidence, and require the production of any matter which is
1631 relevant to the investigation, including the existence,
1632 description, nature, custody, condition, and location of any
1633 books, documents, or other tangible things and the identity and
1634 location of persons having knowledge of relevant facts or any
1635 other matter reasonably calculated to lead to the discovery of
1636 material evidence. Upon the failure by a person to obey a
1637 subpoena or to answer questions propounded by the investigating
1638 officer and upon reasonable notice to all affected persons, the
1639 division may apply to the circuit court for an order compelling
1640 compliance.
1641 (d) Notwithstanding any remedies available to unit owners
1642 and associations, if the division has reasonable cause to
1643 believe that a violation of any provision of this chapter or
1644 related rule has occurred, the division may institute
1645 enforcement proceedings in its own name against any developer,
1646 bulk assignee, bulk buyer, association, officer, or member of
1647 the board of administration, or its assignees or agents, as
1648 follows:
1649 1. The division may permit a person whose conduct or
1650 actions may be under investigation to waive formal proceedings
1651 and enter into a consent proceeding whereby orders, rules, or
1652 letters of censure or warning, whether formal or informal, may
1653 be entered against the person.
1654 2. The division may issue an order requiring the developer,
1655 bulk assignee, bulk buyer, association, developer-designated
1656 officer, or developer-designated member of the board of
1657 administration, developer-designated assignees or agents, bulk
1658 assignee-designated assignees or agents, bulk buyer-designated
1659 assignees or agents, community association manager, or community
1660 association management firm to cease and desist from the
1661 unlawful practice and take such affirmative action as in the
1662 judgment of the division carry out the purposes of this chapter.
1663 If the division finds that a developer, bulk assignee, bulk
1664 buyer, association, officer, or member of the board of
1665 administration, or its assignees or agents, is violating or is
1666 about to violate any provision of this chapter, any rule adopted
1667 or order issued by the division, or any written agreement
1668 entered into with the division, and presents an immediate danger
1669 to the public requiring an immediate final order, it may issue
1670 an emergency cease and desist order reciting with particularity
1671 the facts underlying such findings. The emergency cease and
1672 desist order is effective for 90 days. If the division begins
1673 nonemergency cease and desist proceedings, the emergency cease
1674 and desist order remains effective until the conclusion of the
1675 proceedings under ss. 120.569 and 120.57.
1676 3. If a developer, bulk assignee, or bulk buyer, fails to
1677 pay any restitution determined by the division to be owed, plus
1678 any accrued interest at the highest rate permitted by law,
1679 within 30 days after expiration of any appellate time period of
1680 a final order requiring payment of restitution or the conclusion
1681 of any appeal thereof, whichever is later, the division must
1682 bring an action in circuit or county court on behalf of any
1683 association, class of unit owners, lessees, or purchasers for
1684 restitution, declaratory relief, injunctive relief, or any other
1685 available remedy. The division may also temporarily revoke its
1686 acceptance of the filing for the developer to which the
1687 restitution relates until payment of restitution is made.
1688 4. The division may petition the court for appointment of a
1689 receiver or conservator. If appointed, the receiver or
1690 conservator may take action to implement the court order to
1691 ensure the performance of the order and to remedy any breach
1692 thereof. In addition to all other means provided by law for the
1693 enforcement of an injunction or temporary restraining order, the
1694 circuit court may impound or sequester the property of a party
1695 defendant, including books, papers, documents, and related
1696 records, and allow the examination and use of the property by
1697 the division and a court-appointed receiver or conservator.
1698 5. The division may apply to the circuit court for an order
1699 of restitution whereby the defendant in an action brought under
1700 pursuant to subparagraph 4. is ordered to make restitution of
1701 those sums shown by the division to have been obtained by the
1702 defendant in violation of this chapter. At the option of the
1703 court, such restitution is payable to the conservator or
1704 receiver appointed under pursuant to subparagraph 4. or directly
1705 to the persons whose funds or assets were obtained in violation
1706 of this chapter.
1707 6. The division may impose a civil penalty against a
1708 developer, bulk assignee, or bulk buyer, or association, or its
1709 assignee or agent, for any violation of this chapter or related
1710 rule. The division may impose a civil penalty individually
1711 against an officer or board member who willfully and knowingly
1712 violates a provision of this chapter, adopted rule, or a final
1713 order of the division; may order the removal of such individual
1714 as an officer or from the board of administration or as an
1715 officer of the association; and may prohibit such individual
1716 from serving as an officer or on the board of a community
1717 association for a period of time. The term “willfully and
1718 knowingly” means that the division informed the officer or board
1719 member that his or her action or intended action violates this
1720 chapter, a rule adopted under this chapter, or a final order of
1721 the division and that the officer or board member refused to
1722 comply with the requirements of this chapter, a rule adopted
1723 under this chapter, or a final order of the division. The
1724 division, before initiating formal agency action under chapter
1725 120, must afford the officer or board member an opportunity to
1726 voluntarily comply, and an officer or board member who complies
1727 within 10 days is not subject to a civil penalty. A penalty may
1728 be imposed on the basis of each day of continuing violation, but
1729 the penalty for any offense may not exceed $5,000. By January 1,
1730 1998, The division shall adopt, by rule, penalty guidelines
1731 applicable to possible violations or to categories of violations
1732 of this chapter or rules adopted by the division. The guidelines
1733 must specify a meaningful range of civil penalties for each such
1734 violation of the statute and rules and must be based upon the
1735 harm caused by the violation, the repetition of the violation,
1736 and upon such other factors deemed relevant by the division. For
1737 example, the division may consider whether the violations were
1738 committed by a developer, bulk assignee, or bulk buyer, or
1739 owner-controlled association, the size of the association, and
1740 other factors. The guidelines must designate the possible
1741 mitigating or aggravating circumstances that justify a departure
1742 from the range of penalties provided by the rules. It is the
1743 legislative intent that minor violations be distinguished from
1744 those which endanger the health, safety, or welfare of the
1745 condominium residents or other persons and that such guidelines
1746 provide reasonable and meaningful notice to the public of likely
1747 penalties that may be imposed for proscribed conduct. This
1748 subsection does not limit the ability of the division to
1749 informally dispose of administrative actions or complaints by
1750 stipulation, agreed settlement, or consent order. All amounts
1751 collected shall be deposited with the Chief Financial Officer to
1752 the credit of the Division of Florida Condominiums, Timeshares,
1753 and Mobile Homes Trust Fund. If a developer, bulk assignee, or
1754 bulk buyer fails to pay the civil penalty and the amount deemed
1755 to be owed to the association, the division shall issue an order
1756 directing that such developer, bulk assignee, or bulk buyer
1757 cease and desist from further operation until such time as the
1758 civil penalty is paid or may pursue enforcement of the penalty
1759 in a court of competent jurisdiction. If an association fails to
1760 pay the civil penalty, the division shall pursue enforcement in
1761 a court of competent jurisdiction, and the order imposing the
1762 civil penalty or the cease and desist order is not effective
1763 until 20 days after the date of such order. Any action commenced
1764 by the division shall be brought in the county in which the
1765 division has its executive offices or in the county where the
1766 violation occurred.
1767 7. If a unit owner presents the division with proof that
1768 the unit owner has requested access to official records in
1769 writing by certified mail, and that after 10 days the unit owner
1770 again made the same request for access to official records in
1771 writing by certified mail, and that more than 10 days has
1772 elapsed since the second request and the association has still
1773 failed or refused to provide access to official records as
1774 required by this chapter, the division shall issue a subpoena
1775 requiring production of the requested records where the records
1776 are kept pursuant to s. 718.112.
1777 8. In addition to subparagraph 6., the division may seek
1778 the imposition of a civil penalty through the circuit court for
1779 any violation for which the division may issue a notice to show
1780 cause under paragraph (r). The civil penalty shall be at least
1781 $500 but no more than $5,000 for each violation. The court may
1782 also award to the prevailing party court costs and reasonable
1783 attorney attorney’s fees and, if the division prevails, may also
1784 award reasonable costs of investigation.
1785 (e) The division may prepare and disseminate a prospectus
1786 and other information to assist prospective owners, purchasers,
1787 lessees, and developers of residential condominiums in assessing
1788 the rights, privileges, and duties pertaining thereto.
1789 (f) The division may adopt rules to administer and enforce
1790 the provisions of this chapter.
1791 (g) The division shall establish procedures for providing
1792 notice to an association and the developer, bulk assignee, or
1793 bulk buyer during the period in which the developer, bulk
1794 assignee, or bulk buyer controls the association if the division
1795 is considering the issuance of a declaratory statement with
1796 respect to the declaration of condominium or any related
1797 document governing such condominium community.
1798 (h) The division shall furnish each association that pays
1799 the fees required by paragraph (3)(a) (2)(a) a copy of this
1800 chapter, as amended, and the rules adopted thereto on an annual
1801 basis.
1802 (i) The division shall annually provide each association
1803 with a summary of declaratory statements and formal legal
1804 opinions relating to the operations of condominiums which were
1805 rendered by the division during the previous year.
1806 (j) The division shall provide training and educational
1807 programs for condominium association board members and unit
1808 owners. The training may, in the division’s discretion, include
1809 web-based electronic media, and live training and seminars in
1810 various locations throughout the state. The division may review
1811 and approve education and training programs for board members
1812 and unit owners offered by providers and shall maintain a
1813 current list of approved programs and providers and make such
1814 list available to board members and unit owners in a reasonable
1815 and cost-effective manner. The division may adopt rules to
1816 establish requirements for such training and educational
1817 programs.
1818 (k) The division shall maintain a toll-free telephone
1819 number accessible to condominium unit owners.
1820 (l) The division shall develop a program to certify both
1821 volunteer and paid mediators to provide mediation of condominium
1822 disputes. The division shall provide, upon request, a list of
1823 such mediators to any association, unit owner, or other
1824 participant in alternative dispute resolution arbitration
1825 proceedings under s. 718.1255 requesting a copy of the list. The
1826 division shall include on the list of volunteer mediators only
1827 the names of persons who have received at least 20 hours of
1828 training in mediation techniques or who have mediated at least
1829 20 disputes. In order to become initially certified by the
1830 division, paid mediators must be certified by the Supreme Court
1831 to mediate court cases in county or circuit courts. However, the
1832 division may adopt, by rule, additional factors for the
1833 certification of paid mediators, which must be related to
1834 experience, education, or background. Any person initially
1835 certified as a paid mediator by the division must, in order to
1836 continue to be certified, comply with the factors or
1837 requirements adopted by rule.
1838 (m) If a complaint is made, the division must conduct its
1839 inquiry with due regard for the interests of the affected
1840 parties. Within 30 days after receipt of a complaint, the
1841 division shall acknowledge the complaint in writing and notify
1842 the complainant whether the complaint is within the jurisdiction
1843 of the division and whether additional information is needed by
1844 the division from the complainant. The division shall conduct
1845 its investigation and, within 90 days after receipt of the
1846 original complaint or of timely requested additional
1847 information, take action upon the complaint. However, the
1848 failure to complete the investigation within 90 days does not
1849 prevent the division from continuing the investigation,
1850 accepting or considering evidence obtained or received after 90
1851 days, or taking administrative action if reasonable cause exists
1852 to believe that a violation of this chapter or a rule has
1853 occurred. If an investigation is not completed within the time
1854 limits established in this paragraph, the division shall, on a
1855 monthly basis, notify the complainant in writing of the status
1856 of the investigation. When reporting its action to the
1857 complainant, the division shall inform the complainant of any
1858 right to a hearing under pursuant to ss. 120.569 and 120.57.
1859 (n) Condominium association directors, officers, and
1860 employees; condominium developers; bulk assignees, bulk buyers,
1861 and community association managers; and community association
1862 management firms have an ongoing duty to reasonably cooperate
1863 with the division in any investigation under pursuant to this
1864 section. The division shall refer to local law enforcement
1865 authorities any person whom the division believes has altered,
1866 destroyed, concealed, or removed any record, document, or thing
1867 required to be kept or maintained by this chapter with the
1868 purpose to impair its verity or availability in the department’s
1869 investigation.
1870 (o) The division may:
1871 1. Contract with agencies in this state or other
1872 jurisdictions to perform investigative functions; or
1873 2. Accept grants-in-aid from any source.
1874 (p) The division shall cooperate with similar agencies in
1875 other jurisdictions to establish uniform filing procedures and
1876 forms, public offering statements, advertising standards, and
1877 rules and common administrative practices.
1878 (q) The division shall consider notice to a developer, bulk
1879 assignee, or bulk buyer to be complete when it is delivered to
1880 the address of the developer, bulk assignee, or bulk buyer
1881 currently on file with the division.
1882 (r) In addition to its enforcement authority, the division
1883 may issue a notice to show cause, which must provide for a
1884 hearing, upon written request, in accordance with chapter 120.
1885 (s) The division shall submit to the Governor, the
1886 President of the Senate, the Speaker of the House of
1887 Representatives, and the chairs of the legislative
1888 appropriations committees an annual report that includes, but
1889 need not be limited to, the number of training programs provided
1890 for condominium association board members and unit owners, the
1891 number of complaints received by type, the number and percent of
1892 complaints acknowledged in writing within 30 days and the number
1893 and percent of investigations acted upon within 90 days in
1894 accordance with paragraph (m), and the number of investigations
1895 exceeding the 90-day requirement. The annual report must also
1896 include an evaluation of the division’s core business processes
1897 and make recommendations for improvements, including statutory
1898 changes. The report shall be submitted by September 30 following
1899 the end of the fiscal year.
1900 (3)(a)(2)(a) Each condominium association which operates
1901 more than two units shall pay to the division an annual fee in
1902 the amount of $4 for each residential unit in condominiums
1903 operated by the association. If the fee is not paid by March 1,
1904 the association shall be assessed a penalty of 10 percent of the
1905 amount due, and the association will not have standing to
1906 maintain or defend any action in the courts of this state until
1907 the amount due, plus any penalty, is paid.
1908 (b) All fees shall be deposited in the Division of Florida
1909 Condominiums, Timeshares, and Mobile Homes Trust Fund as
1910 provided by law.
1911 Section 14. Section 718.5014, Florida Statutes, is amended
1912 to read:
1913 718.5014 Ombudsman location.—The ombudsman shall maintain
1914 his or her principal office in a Leon County on the premises of
1915 the division or, if suitable space cannot be provided there, at
1916 another place convenient to the offices of the division which
1917 will enable the ombudsman to expeditiously carry out the duties
1918 and functions of his or her office. The ombudsman may establish
1919 branch offices elsewhere in the state upon the concurrence of
1920 the Governor.
1921 Section 15. Subsection (25) of section 719.103, Florida
1922 Statutes, is amended to read:
1923 719.103 Definitions.—As used in this chapter:
1924 (25) “Unit” means a part of the cooperative property which
1925 is subject to exclusive use and possession. A unit may be
1926 improvements, land, or land and improvements together, as
1927 specified in the cooperative documents. An interest in a unit is
1928 an interest in real property.
1929 Section 16. Paragraph (c) of subsection (2) of section
1930 719.104, Florida Statutes, is amended to read:
1931 719.104 Cooperatives; access to units; records; financial
1932 reports; assessments; purchase of leases.—
1933 (2) OFFICIAL RECORDS.—
1934 (c)The official records of the association are open to
1935 inspection by any association member or the authorized
1936 representative of such member at all reasonable times. The right
1937 to inspect the records includes the right to make or obtain
1938 copies, at the reasonable expense, if any, of the association
1939 member. The association may adopt reasonable rules regarding the
1940 frequency, time, location, notice, and manner of record
1941 inspections and copying, but may not require a member to
1942 demonstrate any purpose or state any reason for the inspection.
1943 The failure of an association to provide the records within 10
1944 working days after receipt of a written request creates a
1945 rebuttable presumption that the association willfully failed to
1946 comply with this paragraph. A member unit owner who is denied
1947 access to official records is entitled to the actual damages or
1948 minimum damages for the association’s willful failure to comply.
1949 The minimum damages are $50 per calendar day for up to 10 days,
1950 beginning on the 11th working day after receipt of the written
1951 request. The failure to permit inspection entitles any person
1952 prevailing in an enforcement action to recover reasonable
1953 attorney fees from the person in control of the records who,
1954 directly or indirectly, knowingly denied access to the records.
1955 Any person who knowingly or intentionally defaces or destroys
1956 accounting records that are required by this chapter to be
1957 maintained during the period for which such records are required
1958 to be maintained, or who knowingly or intentionally fails to
1959 create or maintain accounting records that are required to be
1960 created or maintained, with the intent of causing harm to the
1961 association or one or more of its members, is personally subject
1962 to a civil penalty under pursuant to s. 719.501(1)(d). The
1963 association shall maintain an adequate number of copies of the
1964 declaration, articles of incorporation, bylaws, and rules, and
1965 all amendments to each of the foregoing, as well as the question
1966 and answer sheet as described in s. 719.504 and year-end
1967 financial information required by the department, on the
1968 cooperative property to ensure their availability to members
1969 unit owners and prospective purchasers, and may charge its
1970 actual costs for preparing and furnishing these documents to
1971 those requesting the same. An association shall allow a member
1972 or his or her authorized representative to use a portable
1973 device, including a smartphone, tablet, portable scanner, or any
1974 other technology capable of scanning or taking photographs, to
1975 make an electronic copy of the official records in lieu of the
1976 association providing the member or his or her authorized
1977 representative with a copy of such records. The association may
1978 not charge a member or his or her authorized representative for
1979 the use of a portable device. Notwithstanding this paragraph,
1980 the following records shall not be accessible to members unit
1981 owners:
1982 1. Any record protected by the lawyer-client privilege as
1983 described in s. 90.502 and any record protected by the work
1984 product privilege, including any record prepared by an
1985 association attorney or prepared at the attorney’s express
1986 direction which reflects a mental impression, conclusion,
1987 litigation strategy, or legal theory of the attorney or the
1988 association, and which was prepared exclusively for civil or
1989 criminal litigation or for adversarial administrative
1990 proceedings, or which was prepared in anticipation of such
1991 litigation or proceedings until the conclusion of the litigation
1992 or proceedings.
1993 2. Information obtained by an association in connection
1994 with the approval of the lease, sale, or other transfer of a
1995 unit.
1996 3. Personnel records of association or management company
1997 employees, including, but not limited to, disciplinary, payroll,
1998 health, and insurance records. For purposes of this
1999 subparagraph, the term “personnel records” does not include
2000 written employment agreements with an association employee or
2001 management company, or budgetary or financial records that
2002 indicate the compensation paid to an association employee.
2003 4. Medical records of unit owners.
2004 5. Social security numbers, driver license numbers, credit
2005 card numbers, e-mail addresses, telephone numbers, facsimile
2006 numbers, emergency contact information, addresses of a unit
2007 owner other than as provided to fulfill the association’s notice
2008 requirements, and other personal identifying information of any
2009 person, excluding the person’s name, unit designation, mailing
2010 address, property address, and any address, e-mail address, or
2011 facsimile number provided to the association to fulfill the
2012 association’s notice requirements. Notwithstanding the
2013 restrictions in this subparagraph, an association may print and
2014 distribute to unit parcel owners a directory containing the
2015 name, unit parcel address, and all telephone numbers of each
2016 unit parcel owner. However, an owner may exclude his or her
2017 telephone numbers from the directory by so requesting in writing
2018 to the association. An owner may consent in writing to the
2019 disclosure of other contact information described in this
2020 subparagraph. The association is not liable for the inadvertent
2021 disclosure of information that is protected under this
2022 subparagraph if the information is included in an official
2023 record of the association and is voluntarily provided by an
2024 owner and not requested by the association.
2025 6. Electronic security measures that are used by the
2026 association to safeguard data, including passwords.
2027 7. The software and operating system used by the
2028 association which allow the manipulation of data, even if the
2029 owner owns a copy of the same software used by the association.
2030 The data is part of the official records of the association.
2031 Section 17. Paragraphs (b), (f), and (l) of subsection (1)
2032 of section 719.106, Florida Statutes, are amended, and
2033 subsection (3) is added to that section, to read:
2034 719.106 Bylaws; cooperative ownership.—
2035 (1) MANDATORY PROVISIONS.—The bylaws or other cooperative
2036 documents shall provide for the following, and if they do not,
2037 they shall be deemed to include the following:
2038 (b) Quorum; voting requirements; proxies.—
2039 1. Unless otherwise provided in the bylaws, the percentage
2040 of voting interests required to constitute a quorum at a meeting
2041 of the members shall be a majority of voting interests, and
2042 decisions shall be made by owners of a majority of the voting
2043 interests. Unless otherwise provided in this chapter, or in the
2044 articles of incorporation, bylaws, or other cooperative
2045 documents, and except as provided in subparagraph (d)1.,
2046 decisions shall be made by owners of a majority of the voting
2047 interests represented at a meeting at which a quorum is present.
2048 2. Except as specifically otherwise provided herein, after
2049 January 1, 1992, unit owners may not vote by general proxy, but
2050 may vote by limited proxies substantially conforming to a
2051 limited proxy form adopted by the division. Limited proxies and
2052 general proxies may be used to establish a quorum. Limited
2053 proxies shall be used for votes taken to waive or reduce
2054 reserves in accordance with subparagraph (j)2., for votes taken
2055 to waive the financial reporting requirements of s.
2056 719.104(4)(b), for votes taken to amend the articles of
2057 incorporation or bylaws pursuant to this section, and for any
2058 other matter for which this chapter requires or permits a vote
2059 of the unit owners. Except as provided in paragraph (d), after
2060 January 1, 1992, no proxy, limited or general, shall be used in
2061 the election of board members. General proxies may be used for
2062 other matters for which limited proxies are not required, and
2063 may also be used in voting for nonsubstantive changes to items
2064 for which a limited proxy is required and given. Notwithstanding
2065 the provisions of this section, unit owners may vote in person
2066 at unit owner meetings. Nothing contained herein shall limit the
2067 use of general proxies or require the use of limited proxies or
2068 require the use of limited proxies for any agenda item or
2069 election at any meeting of a timeshare cooperative.
2070 3. Any proxy given shall be effective only for the specific
2071 meeting for which originally given and any lawfully adjourned
2072 meetings thereof. In no event shall any proxy be valid for a
2073 period longer than 90 days after the date of the first meeting
2074 for which it was given. Every proxy shall be revocable at any
2075 time at the pleasure of the unit owner executing it.
2076 4. A member of the board of administration or a committee
2077 may submit in writing his or her agreement or disagreement with
2078 any action taken at a meeting that the member did not attend.
2079 This agreement or disagreement may not be used as a vote for or
2080 against the action taken and may not be used for the purposes of
2081 creating a quorum.
2082 5. A board member or committee member participating in a
2083 meeting via telephone, real-time videoconferencing, or similar
2084 real-time electronic or video communication counts toward a
2085 quorum, and such member may vote as if physically present When
2086 some or all of the board or committee members meet by telephone
2087 conference, those board or committee members attending by
2088 telephone conference may be counted toward obtaining a quorum
2089 and may vote by telephone. A telephone speaker must shall be
2090 used utilized so that the conversation of such those board or
2091 committee members attending by telephone may be heard by the
2092 board or committee members attending in person, as well as by
2093 any unit owners present at a meeting.
2094 (f) Recall of board members.—Subject to s. 719.301, any
2095 member of the board of administration may be recalled and
2096 removed from office with or without cause by the vote or
2097 agreement in writing by a majority of all the voting interests.
2098 A special meeting of the voting interests to recall any member
2099 of the board of administration may be called by 10 percent of
2100 the unit owners giving notice of the meeting as required for a
2101 meeting of unit owners, and the notice shall state the purpose
2102 of the meeting. Electronic transmission may not be used as a
2103 method of giving notice of a meeting called in whole or in part
2104 for this purpose.
2105 1. If the recall is approved by a majority of all voting
2106 interests by a vote at a meeting, the recall shall be effective
2107 as provided in this paragraph. The board shall duly notice and
2108 hold a board meeting within 5 full business days after the
2109 adjournment of the unit owner meeting to recall one or more
2110 board members. At the meeting, the board shall either certify
2111 the recall, in which case such member or members shall be
2112 recalled effective immediately and shall turn over to the board
2113 within 5 full business days any and all records and property of
2114 the association in their possession, or shall proceed as set
2115 forth in subparagraph 3.
2116 2. If the proposed recall is by an agreement in writing by
2117 a majority of all voting interests, the agreement in writing or
2118 a copy thereof shall be served on the association by certified
2119 mail or by personal service in the manner authorized by chapter
2120 48 and the Florida Rules of Civil Procedure. The board of
2121 administration shall duly notice and hold a meeting of the board
2122 within 5 full business days after receipt of the agreement in
2123 writing. At the meeting, the board shall either certify the
2124 written agreement to recall members of the board, in which case
2125 such members shall be recalled effective immediately and shall
2126 turn over to the board, within 5 full business days, any and all
2127 records and property of the association in their possession, or
2128 proceed as described in subparagraph 3.
2129 3. If the board determines not to certify the written
2130 agreement to recall members of the board, or does not certify
2131 the recall by a vote at a meeting, the board shall, within 5
2132 full business days after the board meeting, file with the
2133 division a petition for binding arbitration under pursuant to
2134 the procedures of s. 719.1255 or file an action with a court of
2135 competent jurisdiction. For purposes of this paragraph, the unit
2136 owners who voted at the meeting or who executed the agreement in
2137 writing shall constitute one party under the petition for
2138 arbitration or in a court action. If the arbitrator or court
2139 certifies the recall as to any member of the board, the recall
2140 is shall be effective upon the mailing of the final order of
2141 arbitration to the association or the final order of the court.
2142 If the association fails to comply with the order of the court
2143 or the arbitrator, the division may take action under pursuant
2144 to s. 719.501. Any member so recalled shall deliver to the board
2145 any and all records and property of the association in the
2146 member’s possession within 5 full business days after the
2147 effective date of the recall.
2148 4. If the board fails to duly notice and hold a board
2149 meeting within 5 full business days after service of an
2150 agreement in writing or within 5 full business days after the
2151 adjournment of the unit owner recall meeting, the recall is
2152 shall be deemed effective and the board members so recalled
2153 shall immediately turn over to the board any and all records and
2154 property of the association.
2155 5. If the board fails to duly notice and hold the required
2156 meeting or fails to file the required petition or action, the
2157 unit owner representative may file a petition under pursuant to
2158 s. 719.1255 or file an action in a court of competent
2159 jurisdiction challenging the board’s failure to act. The
2160 petition or action must be filed within 60 days after the
2161 expiration of the applicable 5-full-business-day period. The
2162 review of a petition or action under this subparagraph is
2163 limited to the sufficiency of service on the board and the
2164 facial validity of the written agreement or ballots filed.
2165 6. If a vacancy occurs on the board as a result of a recall
2166 and less than a majority of the board members are removed, the
2167 vacancy may be filled by the affirmative vote of a majority of
2168 the remaining directors, notwithstanding any provision to the
2169 contrary contained in this chapter. If vacancies occur on the
2170 board as a result of a recall and a majority or more of the
2171 board members are removed, the vacancies shall be filled in
2172 accordance with procedural rules to be adopted by the division,
2173 which rules need not be consistent with this chapter. The rules
2174 must provide procedures governing the conduct of the recall
2175 election as well as the operation of the association during the
2176 period after a recall but before the recall election.
2177 7. A board member who has been recalled may file a petition
2178 under pursuant to s. 719.1255 or file an action in a court of
2179 competent jurisdiction challenging the validity of the recall.
2180 The petition or action must be filed within 60 days after the
2181 recall is deemed certified. The association and the unit owner
2182 representative shall be named as the respondents.
2183 8. The division or court may not accept for filing a recall
2184 petition or action, whether filed under pursuant to subparagraph
2185 1., subparagraph 2., subparagraph 5., or subparagraph 7. and
2186 regardless of whether the recall was certified, when there are
2187 60 or fewer days until the scheduled reelection of the board
2188 member sought to be recalled or when 60 or fewer days have not
2189 elapsed since the election of the board member sought to be
2190 recalled.
2191 (l) Alternative dispute resolution Arbitration.—There shall
2192 be a provision for alternative dispute resolution mandatory
2193 nonbinding arbitration of internal disputes arising from the
2194 operation of the cooperative in accordance with s. 719.1255.
2195 (3) GENERALLY.—The association may extinguish a
2196 discriminatory restriction as provided under s. 712.065.
2197 Section 18. Section 719.128, Florida Statutes, is amended
2198 to read:
2199 719.128 Association emergency powers.—
2200 (1) To the extent allowed by law, unless specifically
2201 prohibited by the cooperative documents, and consistent with s.
2202 617.0830, the board of administration, in response to damage or
2203 injury caused by or anticipated in connection with an emergency,
2204 as defined in s. 252.34(4), event for which a state of emergency
2205 is declared pursuant to s. 252.36 in the area encompassed by the
2206 cooperative, may exercise the following powers:
2207 (a) Conduct board meetings, committee meetings, elections,
2208 or membership meetings, in whole or in part, by telephone, real
2209 time videoconferencing, or similar real-time electronic or video
2210 communication after notice of the meetings and board decisions
2211 is provided in as practicable a manner as possible, including
2212 via publication, radio, United States mail, the Internet,
2213 electronic transmission, public service announcements,
2214 conspicuous posting on the cooperative property, or any other
2215 means the board deems appropriate under the circumstances.
2216 Notice of decisions may also be communicated as provided in this
2217 paragraph.
2218 (b) Cancel and reschedule an association meeting.
2219 (c) Designate assistant officers who are not directors. If
2220 the executive officer is incapacitated or unavailable, the
2221 assistant officer has the same authority during the state of
2222 emergency as the executive officer he or she assists.
2223 (d) Relocate the association’s principal office or
2224 designate an alternative principal office.
2225 (e) Enter into agreements with counties and municipalities
2226 to assist counties and municipalities with debris removal.
2227 (f) Implement a disaster or an emergency plan before,
2228 during, or immediately following the event for which a state of
2229 emergency is declared, which may include turning on or shutting
2230 off elevators; electricity; water, sewer, or security systems;
2231 or air conditioners for association buildings.
2232 (g) Based upon the advice of emergency management officials
2233 or public health officials, or upon the advice of licensed
2234 professionals retained by or otherwise available to the board of
2235 administration, determine any portion of the cooperative
2236 property unavailable for entry or occupancy by unit owners or
2237 their family members, tenants, guests, agents, or invitees to
2238 protect their health, safety, or welfare.
2239 (h) Based upon the advice of emergency management officials
2240 or public health officials, or upon the advice of licensed
2241 professionals retained by or otherwise available to the board of
2242 administration, determine whether the cooperative property or
2243 any portion thereof can be safely inhabited or occupied.
2244 However, such determination is not conclusive as to any
2245 determination of habitability pursuant to the cooperative
2246 documents declaration.
2247 (i) Require the evacuation of the cooperative property in
2248 the event of a mandatory evacuation order in the area where the
2249 cooperative is located or prohibit or restrict access to the
2250 cooperative property in the event of a public health threat. If
2251 a unit owner or other occupant of a cooperative fails to
2252 evacuate the cooperative property for which the board has
2253 required evacuation, the association is immune from liability
2254 for injury to persons or property arising from such failure.
2255 (j) Mitigate further damage, injury, or contagion,
2256 including taking action to contract for the removal of debris
2257 and to prevent or mitigate the spread of fungus, including mold
2258 or mildew, by removing and disposing of wet drywall, insulation,
2259 carpet, cabinetry, or other fixtures on or within the
2260 cooperative property, regardless of whether the unit owner is
2261 obligated by the cooperative documents declaration or law to
2262 insure or replace those fixtures and to remove personal property
2263 from a unit or to sanitize the cooperative property.
2264 (k) Contract, on behalf of a unit owner, for items or
2265 services for which the owner is otherwise individually
2266 responsible, but which are necessary to prevent further injury,
2267 contagion, or damage to the cooperative property. In such event,
2268 the unit owner on whose behalf the board has contracted is
2269 responsible for reimbursing the association for the actual costs
2270 of the items or services, and the association may use its lien
2271 authority provided by s. 719.108 to enforce collection of the
2272 charges. Such items or services may include the drying of the
2273 unit, the boarding of broken windows or doors, and the
2274 replacement of a damaged air conditioner or air handler to
2275 provide climate control in the unit or other portions of the
2276 property, and the sanitizing of the cooperative property.
2277 (l) Notwithstanding a provision to the contrary, and
2278 regardless of whether such authority does not specifically
2279 appear in the cooperative documents, levy special assessments
2280 without a vote of the owners.
2281 (m) Without unit owners’ approval, borrow money and pledge
2282 association assets as collateral to fund emergency repairs and
2283 carry out the duties of the association if operating funds are
2284 insufficient. This paragraph does not limit the general
2285 authority of the association to borrow money, subject to such
2286 restrictions contained in the cooperative documents.
2287 (2) The authority granted under subsection (1) is limited
2288 to that time reasonably necessary to protect the health, safety,
2289 and welfare of the association and the unit owners and their
2290 family members, tenants, guests, agents, or invitees, and to
2291 mitigate further damage, injury, or contagion and make emergency
2292 repairs.
2293 (3) Notwithstanding paragraphs (1)(f)-(i), during a state
2294 of emergency declared by executive order or proclamation of the
2295 Governor pursuant to s. 252.36, an association may not prohibit
2296 unit owners, tenants, guests, agents, or invitees of a unit
2297 owner from accessing the common elements and limited common
2298 elements appurtenant thereto for the purposes of ingress to and
2299 egress from the unit when access is necessary in connection
2300 with:
2301 (a) The sale, lease, or other transfer of title of a unit;
2302 or
2303 (b) The habitability of the unit or for the health and
2304 safety of such person unless a governmental order or
2305 determination, or a public health directive from the Centers for
2306 Disease Control and Prevention, has been issued prohibiting such
2307 access to the unit. Any such access is subject to reasonable
2308 restrictions adopted by the association.
2309 Section 19. Subsection (8) of section 720.301, Florida
2310 Statutes, is amended to read:
2311 720.301 Definitions.—As used in this chapter, the term:
2312 (8) “Governing documents” means:
2313 (a) The recorded declaration of covenants for a community
2314 and all duly adopted and recorded amendments, supplements, and
2315 recorded exhibits thereto; and
2316 (b) The articles of incorporation and bylaws of the
2317 homeowners’ association and any duly adopted amendments thereto;
2318 and
2319 (c) Rules and regulations adopted under the authority of
2320 the recorded declaration, articles of incorporation, or bylaws
2321 and duly adopted amendments thereto.
2322 Section 20. Present paragraph (l) of subsection (4) of
2323 section 720.303, Florida Statutes, is redesignated as paragraph
2324 (m) and amended, a new paragraph (l) is added to that
2325 subsection, and paragraph (c) of subsection (2), paragraphs (c)
2326 and (d) of subsection (6), and paragraphs (b), (d), (g), (k),
2327 and (l) of subsection (10) are amended, to read:
2328 720.303 Association powers and duties; meetings of board;
2329 official records; budgets; financial reporting; association
2330 funds; recalls.—
2331 (2) BOARD MEETINGS.—
2332 (c) The bylaws shall provide the following for giving
2333 notice to parcel owners and members of all board meetings and,
2334 if they do not do so, shall be deemed to include the following:
2335 1. Notices of all board meetings must be posted in a
2336 conspicuous place in the community at least 48 hours in advance
2337 of a meeting, except in an emergency. In the alternative, if
2338 notice is not posted in a conspicuous place in the community,
2339 notice of each board meeting must be mailed or delivered to each
2340 member at least 7 days before the meeting, except in an
2341 emergency. Notwithstanding this general notice requirement, for
2342 communities with more than 100 members, the association bylaws
2343 may provide for a reasonable alternative to posting or mailing
2344 of notice for each board meeting, including publication of
2345 notice, provision of a schedule of board meetings, or the
2346 conspicuous posting and repeated broadcasting of the notice on a
2347 closed-circuit cable television system serving the homeowners’
2348 association. However, if broadcast notice is used in lieu of a
2349 notice posted physically in the community, the notice must be
2350 broadcast at least four times every broadcast hour of each day
2351 that a posted notice is otherwise required. When broadcast
2352 notice is provided, the notice and agenda must be broadcast in a
2353 manner and for a sufficient continuous length of time so as to
2354 allow an average reader to observe the notice and read and
2355 comprehend the entire content of the notice and the agenda. In
2356 addition to any of the authorized means of providing notice of a
2357 meeting of the board, the association may, by rule, adopt a
2358 procedure for conspicuously posting the meeting notice and the
2359 agenda on the association’s website or an application that can
2360 be downloaded on a mobile device for at least the minimum period
2361 of time for which a notice of a meeting is also required to be
2362 physically posted on the association property. Any rule adopted
2363 must, in addition to other matters, include a requirement that
2364 the association send an electronic notice to members whose e
2365 mail addresses are included in the association’s official
2366 records in the same manner as is required for a notice of a
2367 meeting of the members. Such notice must include a hyperlink to
2368 the website or such mobile application on which the meeting
2369 notice is posted. The association may provide notice by
2370 electronic transmission in a manner authorized by law for
2371 meetings of the board of directors, committee meetings requiring
2372 notice under this section, and annual and special meetings of
2373 the members to any member who has provided a facsimile number or
2374 e-mail address to the association to be used for such purposes;
2375 however, a member must consent in writing to receiving notice by
2376 electronic transmission.
2377 2. An assessment may not be levied at a board meeting
2378 unless the notice of the meeting includes a statement that
2379 assessments will be considered and the nature of the
2380 assessments. Written notice of any meeting at which special
2381 assessments will be considered or at which amendments to rules
2382 regarding parcel use will be considered must be mailed,
2383 delivered, or electronically transmitted to the members and
2384 parcel owners and posted conspicuously on the property or
2385 broadcast on closed-circuit cable television not less than 14
2386 days before the meeting.
2387 3. Directors may not vote by proxy or by secret ballot at
2388 board meetings, except that secret ballots may be used in the
2389 election of officers. This subsection also applies to the
2390 meetings of any committee or other similar body, when a final
2391 decision will be made regarding the expenditure of association
2392 funds, and to any body vested with the power to approve or
2393 disapprove architectural decisions with respect to a specific
2394 parcel of residential property owned by a member of the
2395 community.
2396 (4) OFFICIAL RECORDS.—The association shall maintain each
2397 of the following items, when applicable, which constitute the
2398 official records of the association:
2399 (l) Ballots, sign-in sheets, voting proxies, and all other
2400 papers and electronic records relating to voting by parcel
2401 owners, which must be maintained for at least 1 year after the
2402 date of the election, vote, or meeting.
2403 (m)(l) All other written records of the association not
2404 specifically included in this subsection the foregoing which are
2405 related to the operation of the association.
2406 (6) BUDGETS.—
2407 (c)1. If the budget of the association does not provide for
2408 reserve accounts under pursuant to paragraph (d), or the
2409 declaration of covenants, articles, or bylaws do not obligate
2410 the developer to create reserves, and the association is
2411 responsible for the repair and maintenance of capital
2412 improvements that may result in a special assessment if reserves
2413 are not provided or not fully funded, each financial report for
2414 the preceding fiscal year required by subsection (7) must
2415 contain the following statement in conspicuous type:
2416
2417 THE BUDGET OF THE ASSOCIATION DOES NOT PROVIDE FOR FULLY FUNDED
2418 RESERVE ACCOUNTS FOR CAPITAL EXPENDITURES AND DEFERRED
2419 MAINTENANCE THAT MAY RESULT IN SPECIAL ASSESSMENTS REGARDING
2420 THOSE ITEMS. OWNERS MAY ELECT TO PROVIDE FOR FULLY FUNDED
2421 RESERVE ACCOUNTS UNDER PURSUANT TO SECTION 720.303(6), FLORIDA
2422 STATUTES, UPON OBTAINING THE APPROVAL OF A MAJORITY OF THE TOTAL
2423 VOTING INTERESTS OF THE ASSOCIATION BY VOTE OF THE MEMBERS AT A
2424 MEETING OR BY WRITTEN CONSENT.
2425 2. If the budget of the association does provide for
2426 funding accounts for deferred expenditures, including, but not
2427 limited to, funds for capital expenditures and deferred
2428 maintenance, but such accounts are not created or established
2429 under pursuant to paragraph (d), each financial report for the
2430 preceding fiscal year required under subsection (7) must also
2431 contain the following statement in conspicuous type:
2432 THE BUDGET OF THE ASSOCIATION PROVIDES FOR LIMITED VOLUNTARY
2433 DEFERRED EXPENDITURE ACCOUNTS, INCLUDING CAPITAL EXPENDITURES
2434 AND DEFERRED MAINTENANCE, SUBJECT TO LIMITS ON FUNDING CONTAINED
2435 IN OUR GOVERNING DOCUMENTS. BECAUSE THE OWNERS HAVE NOT ELECTED
2436 TO PROVIDE FOR RESERVE ACCOUNTS UNDER PURSUANT TO SECTION
2437 720.303(6), FLORIDA STATUTES, THESE FUNDS ARE NOT SUBJECT TO THE
2438 RESTRICTIONS ON USE OF SUCH FUNDS SET FORTH IN THAT STATUTE, NOR
2439 ARE RESERVES CALCULATED IN ACCORDANCE WITH THAT STATUTE.
2440 (d) An association is deemed to have provided for reserve
2441 accounts if reserve accounts have been initially established by
2442 the developer or if the membership of the association
2443 affirmatively elects to provide for reserves. If reserve
2444 accounts are established by the developer, the budget must
2445 designate the components for which the reserve accounts may be
2446 used. If reserve accounts are not initially provided by the
2447 developer, the membership of the association may elect to do so
2448 upon the affirmative approval of a majority of the total voting
2449 interests of the association. Such approval may be obtained by
2450 vote of the members at a duly called meeting of the membership
2451 or by the written consent of a majority of the total voting
2452 interests of the association. The approval action of the
2453 membership must state that reserve accounts shall be provided
2454 for in the budget and must designate the components for which
2455 the reserve accounts are to be established. Upon approval by the
2456 membership, the board of directors shall include the required
2457 reserve accounts in the budget in the next fiscal year following
2458 the approval and each year thereafter. Once established as
2459 provided in this subsection, the reserve accounts must be funded
2460 or maintained or have their funding waived in the manner
2461 provided in paragraph (f).
2462 (10) RECALL OF DIRECTORS.—
2463 (b)1. Board directors may be recalled by an agreement in
2464 writing or by written ballot without a membership meeting. The
2465 agreement in writing or the written ballots, or a copy thereof,
2466 shall be served on the association by certified mail or by
2467 personal service in the manner authorized by chapter 48 and the
2468 Florida Rules of Civil Procedure.
2469 2. The board shall duly notice and hold a meeting of the
2470 board within 5 full business days after receipt of the agreement
2471 in writing or written ballots. At the meeting, the board shall
2472 either certify the written ballots or written agreement to
2473 recall a director or directors of the board, in which case such
2474 director or directors shall be recalled effective immediately
2475 and shall turn over to the board within 5 full business days any
2476 and all records and property of the association in their
2477 possession, or proceed as described in paragraph (d).
2478 3. When it is determined by the department pursuant to
2479 binding arbitration proceedings or the court in an action filed
2480 in a court of competent jurisdiction that an initial recall
2481 effort was defective, written recall agreements or written
2482 ballots used in the first recall effort and not found to be
2483 defective may be reused in one subsequent recall effort.
2484 However, in no event is a written agreement or written ballot
2485 valid for more than 120 days after it has been signed by the
2486 member.
2487 4. Any rescission or revocation of a member’s written
2488 recall ballot or agreement must be in writing and, in order to
2489 be effective, must be delivered to the association before the
2490 association is served with the written recall agreements or
2491 ballots.
2492 5. The agreement in writing or ballot shall list at least
2493 as many possible replacement directors as there are directors
2494 subject to the recall, when at least a majority of the board is
2495 sought to be recalled; the person executing the recall
2496 instrument may vote for as many replacement candidates as there
2497 are directors subject to the recall.
2498 (d) If the board determines not to certify the written
2499 agreement or written ballots to recall a director or directors
2500 of the board or does not certify the recall by a vote at a
2501 meeting, the board shall, within 5 full business days after the
2502 meeting, file an action with a court of competent jurisdiction
2503 or file with the department a petition for binding arbitration
2504 under pursuant to the applicable procedures in ss. 718.112(2)(j)
2505 and 718.1255 and the rules adopted thereunder. For the purposes
2506 of this section, the members who voted at the meeting or who
2507 executed the agreement in writing shall constitute one party
2508 under the petition for arbitration or in a court action. If the
2509 arbitrator or court certifies the recall as to any director or
2510 directors of the board, the recall will be effective upon the
2511 final order of the court or the mailing of the final order of
2512 arbitration to the association. The director or directors so
2513 recalled shall deliver to the board any and all records of the
2514 association in their possession within 5 full business days
2515 after the effective date of the recall.
2516 (g) If the board fails to duly notice and hold the required
2517 meeting or fails to file the required petition or action, the
2518 parcel unit owner representative may file a petition or a court
2519 action under pursuant to s. 718.1255 challenging the board’s
2520 failure to act. The petition or action must be filed within 60
2521 days after the expiration of the applicable 5-full-business-day
2522 period. The review of a petition or action under this paragraph
2523 is limited to the sufficiency of service on the board and the
2524 facial validity of the written agreement or ballots filed.
2525 (k) A board member who has been recalled may file an action
2526 with a court of competent jurisdiction or a petition under
2527 pursuant to ss. 718.112(2)(j) and 718.1255 and the rules adopted
2528 challenging the validity of the recall. The petition or action
2529 must be filed within 60 days after the recall is deemed
2530 certified. The association and the parcel unit owner
2531 representative shall be named as respondents.
2532 (l) The division or a court of competent jurisdiction may
2533 not accept for filing a recall petition or action, whether filed
2534 under pursuant to paragraph (b), paragraph (c), paragraph (g),
2535 or paragraph (k) and regardless of whether the recall was
2536 certified, when there are 60 or fewer days until the scheduled
2537 reelection of the board member sought to be recalled or when 60
2538 or fewer days have not elapsed since the election of the board
2539 member sought to be recalled.
2540 Section 21. Subsection (2) of section 720.305, Florida
2541 Statutes, is amended to read:
2542 720.305 Obligations of members; remedies at law or in
2543 equity; levy of fines and suspension of use rights.—
2544 (2) An The association may levy reasonable fines. A fine
2545 may not exceed $100 per violation against any member or any
2546 member’s tenant, guest, or invitee for the failure of the owner
2547 of the parcel or its occupant, licensee, or invitee to comply
2548 with any provision of the declaration, the association bylaws,
2549 or reasonable rules of the association unless otherwise provided
2550 in the governing documents. A fine may be levied by the board
2551 for each day of a continuing violation, with a single notice and
2552 opportunity for hearing, except that the fine may not exceed
2553 $1,000 in the aggregate unless otherwise provided in the
2554 governing documents. A fine of less than $1,000 may not become a
2555 lien against a parcel. In any action to recover a fine, the
2556 prevailing party is entitled to reasonable attorney fees and
2557 costs from the nonprevailing party as determined by the court.
2558 (a) An association may suspend, for a reasonable period of
2559 time, the right of a member, or a member’s tenant, guest, or
2560 invitee, to use common areas and facilities for the failure of
2561 the owner of the parcel or its occupant, licensee, or invitee to
2562 comply with any provision of the declaration, the association
2563 bylaws, or reasonable rules of the association. This paragraph
2564 does not apply to that portion of common areas used to provide
2565 access or utility services to the parcel. A suspension may not
2566 prohibit an owner or tenant of a parcel from having vehicular
2567 and pedestrian ingress to and egress from the parcel, including,
2568 but not limited to, the right to park.
2569 (b) A fine or suspension levied by the board of
2570 administration may not be imposed unless the board first
2571 provides at least 14 days’ notice to the parcel owner and, if
2572 applicable, any occupant, licensee, or invitee of the parcel
2573 owner, sought to be fined or suspended and an opportunity for a
2574 hearing before a committee of at least three members appointed
2575 by the board who are not officers, directors, or employees of
2576 the association, or the spouse, parent, child, brother, or
2577 sister of an officer, director, or employee. If the committee,
2578 by majority vote, does not approve a proposed fine or
2579 suspension, the proposed fine or suspension may not be imposed.
2580 The role of the committee is limited to determining whether to
2581 confirm or reject the fine or suspension levied by the board. If
2582 the proposed fine or suspension levied by the board is approved
2583 by the committee, the fine payment is due 5 days after notice of
2584 the approved fine is provided to the parcel owner and, if
2585 applicable, to any occupant, licensee, or invitee of the parcel
2586 owner the date of the committee meeting at which the fine is
2587 approved. The association must provide written notice of such
2588 fine or suspension by mail or hand delivery to the parcel owner
2589 and, if applicable, to any occupant tenant, licensee, or invitee
2590 of the parcel owner.
2591 Section 22. Paragraph (g) of subsection (1) and paragraph
2592 (c) of subsection (9) of section 720.306, Florida Statutes, are
2593 amended, and paragraph (h) is added to subsection (1) of that
2594 section, to read:
2595 720.306 Meetings of members; voting and election
2596 procedures; amendments.—
2597 (1) QUORUM; AMENDMENTS.—
2598 (g) A notice required under this section must be mailed or
2599 delivered to the address identified as the parcel owner’s
2600 mailing address in the official records of the association as
2601 required under s. 720.303(4) on the property appraiser’s website
2602 for the county in which the parcel is located, or electronically
2603 transmitted in a manner authorized by the association if the
2604 parcel owner has consented, in writing, to receive notice by
2605 electronic transmission.
2606 (h)1. Except as provided herein, an amendment to a
2607 governing document, rule, or regulation enacted after July 1,
2608 2021, which prohibits a parcel owner from renting his or her
2609 parcel, alters the authorized duration of a rental term, or
2610 specifies or limits the number of times that a parcel owner may
2611 rent his or her parcel during a specified period, applies only
2612 to a parcel owner who consents, individually or through a
2613 representative, to the amendment, and to parcel owners who
2614 acquire title to a parcel after the effective date of the
2615 amendment.
2616 2. Notwithstanding subparagraph 1., an association may
2617 amend its governing documents to prohibit or regulate rental
2618 durations that are for terms of less than 6 months and to
2619 prohibit a parcel owner from renting his or parcel more than
2620 three times in a calendar year. Such amendments apply to all
2621 parcel owners.
2622 3. This paragraph does not affect the amendment
2623 restrictions for associations of 15 or fewer parcel owners as
2624 provided in s. 720.303(1).
2625 4. For purposes of this paragraph, a change of ownership
2626 does not occur when a parcel owner conveys the parcel to an
2627 affiliated entity or when beneficial ownership of the parcel
2628 does not change. For purposes of this paragraph, the term
2629 “affiliated entity” means an entity that controls, is controlled
2630 by, or is under common control with the parcel owner or that
2631 becomes a parent or successor entity by reason of transfer,
2632 merger, consolidation, public offering, reorganization,
2633 dissolution or sale of stock, or transfer of membership
2634 partnership interests. For a conveyance to be recognized as one
2635 made to an affiliated entity, the entity must furnish the
2636 association a document certifying that this paragraph applies,
2637 as well as providing any organizational documents for the parcel
2638 owner and the affiliated entity that support the representations
2639 in the certificate, as requested by the association.
2640 (9) ELECTIONS AND BOARD VACANCIES.—
2641 (c) Any election dispute between a member and an
2642 association must be submitted to mandatory binding arbitration
2643 with the division or filed with a court of competent
2644 jurisdiction. Such proceedings that are submitted to binding
2645 arbitration with the division must be conducted in the manner
2646 provided by s. 718.1255 and the procedural rules adopted by the
2647 division. Unless otherwise provided in the bylaws, any vacancy
2648 occurring on the board before the expiration of a term may be
2649 filled by an affirmative vote of the majority of the remaining
2650 directors, even if the remaining directors constitute less than
2651 a quorum, or by the sole remaining director. In the alternative,
2652 a board may hold an election to fill the vacancy, in which case
2653 the election procedures must conform to the requirements of the
2654 governing documents. Unless otherwise provided in the bylaws, a
2655 board member appointed or elected under this section is
2656 appointed for the unexpired term of the seat being filled.
2657 Filling vacancies created by recall is governed by s.
2658 720.303(10) and rules adopted by the division.
2659 Section 23. Subsection (1) of section 720.311, Florida
2660 Statutes, is amended to read:
2661 720.311 Dispute resolution.—
2662 (1) The Legislature finds that alternative dispute
2663 resolution has made progress in reducing court dockets and
2664 trials and in offering a more efficient, cost-effective option
2665 to litigation. The filing of any petition for arbitration or the
2666 serving of a demand for presuit mediation as provided for in
2667 this section shall toll the applicable statute of limitations.
2668 Any recall dispute filed with the department under pursuant to
2669 s. 720.303(10) shall be conducted by the department in
2670 accordance with the provisions of ss. 718.112(2)(j) and 718.1255
2671 and the rules adopted by the division. In addition, the
2672 department shall conduct mandatory binding arbitration of
2673 election disputes between a member and an association in
2674 accordance with pursuant to s. 718.1255 and rules adopted by the
2675 division. Neither Election disputes and nor recall disputes are
2676 not eligible for presuit mediation; these disputes must shall be
2677 arbitrated by the department or filed in a court of competent
2678 jurisdiction. At the conclusion of an arbitration the
2679 proceeding, the department shall charge the parties a fee in an
2680 amount adequate to cover all costs and expenses incurred by the
2681 department in conducting the proceeding. Initially, the
2682 petitioner shall remit a filing fee of at least $200 to the
2683 department. The fees paid to the department shall become a
2684 recoverable cost in the arbitration proceeding, and the
2685 prevailing party in an arbitration proceeding shall recover its
2686 reasonable costs and attorney attorney’s fees in an amount found
2687 reasonable by the arbitrator. The department shall adopt rules
2688 to effectuate the purposes of this section.
2689 Section 24. Subsection (6) is added to section 720.3075,
2690 Florida Statutes, to read:
2691 720.3075 Prohibited clauses in association documents.—
2692 (6) An association may extinguish a discriminatory
2693 restriction as provided in s. 712.065.
2694 Section 25. Section 720.316, Florida Statutes, is amended
2695 to read:
2696 720.316 Association emergency powers.—
2697 (1) To the extent allowed by law, unless specifically
2698 prohibited by the declaration or other recorded governing
2699 documents, and consistent with s. 617.0830, the board of
2700 directors, in response to damage or injury caused by or
2701 anticipated in connection with an emergency, as defined in s.
2702 252.34(4), event for which a state of emergency is declared
2703 pursuant to s. 252.36 in the area encompassed by the
2704 association, may exercise the following powers:
2705 (a) Conduct board meetings, committee meetings, elections,
2706 or membership meetings, in whole or in part, by telephone, real
2707 time videoconferencing, or similar real-time electronic or video
2708 communication after notice of the meetings and board decisions
2709 is provided in as practicable a manner as possible, including
2710 via publication, radio, United States mail, the Internet,
2711 electronic transmission, public service announcements,
2712 conspicuous posting on the common area association property, or
2713 any other means the board deems appropriate under the
2714 circumstances. Notice of decisions may also be communicated as
2715 provided in this paragraph.
2716 (b) Cancel and reschedule an association meeting.
2717 (c) Designate assistant officers who are not directors. If
2718 the executive officer is incapacitated or unavailable, the
2719 assistant officer has the same authority during the state of
2720 emergency as the executive officer he or she assists.
2721 (d) Relocate the association’s principal office or
2722 designate an alternative principal office.
2723 (e) Enter into agreements with counties and municipalities
2724 to assist counties and municipalities with debris removal.
2725 (f) Implement a disaster or an emergency plan before,
2726 during, or immediately following the event for which a state of
2727 emergency is declared, which may include, but is not limited to,
2728 turning on or shutting off elevators; electricity; water, sewer,
2729 or security systems; or air conditioners for association
2730 buildings.
2731 (g) Based upon the advice of emergency management officials
2732 or public health officials, or upon the advice of licensed
2733 professionals retained by or otherwise available to the board,
2734 determine any portion of the common areas or facilities
2735 association property unavailable for entry or occupancy by
2736 owners or their family members, tenants, guests, agents, or
2737 invitees to protect their health, safety, or welfare.
2738 (h) Based upon the advice of emergency management officials
2739 or public health officials or upon the advice of licensed
2740 professionals retained by or otherwise available to the board,
2741 determine whether the common areas or facilities association
2742 property can be safely inhabited, accessed, or occupied.
2743 However, such determination is not conclusive as to any
2744 determination of habitability pursuant to the declaration.
2745 (i) Mitigate further damage, injury, or contagion,
2746 including taking action to contract for the removal of debris
2747 and to prevent or mitigate the spread of fungus, including mold
2748 or mildew, by removing and disposing of wet drywall, insulation,
2749 carpet, cabinetry, or other fixtures on or within the common
2750 areas or facilities or sanitizing the common areas or facilities
2751 association property.
2752 (j) Notwithstanding a provision to the contrary, and
2753 regardless of whether such authority does not specifically
2754 appear in the declaration or other recorded governing documents,
2755 levy special assessments without a vote of the owners.
2756 (k) Without owners’ approval, borrow money and pledge
2757 association assets as collateral to fund emergency repairs and
2758 carry out the duties of the association if operating funds are
2759 insufficient. This paragraph does not limit the general
2760 authority of the association to borrow money, subject to such
2761 restrictions contained in the declaration or other recorded
2762 governing documents.
2763 (2) The authority granted under subsection (1) is limited
2764 to that time reasonably necessary to protect the health, safety,
2765 and welfare of the association and the parcel owners and their
2766 family members, tenants, guests, agents, or invitees, and to
2767 mitigate further damage, injury, or contagion and make emergency
2768 repairs.
2769 (3) Notwithstanding paragraphs (1)(f)-(i), during a state
2770 of emergency declared by executive order or proclamation of the
2771 Governor pursuant to s. 252.36, an association may not prohibit
2772 parcel owners, tenants, guests, agents, or invitees of a parcel
2773 owner from accessing the common areas and facilities for the
2774 purposes of ingress to and egress from the parcel when access is
2775 necessary in connection with:
2776 (a) The sale, lease, or other transfer of title of a
2777 parcel; or
2778 (b) The habitability of the parcel or for the health and
2779 safety of such person unless a governmental order or
2780 determination, or a public health directive from the Centers for
2781 Disease Control and Prevention, has been issued prohibiting such
2782 access to the parcel. Any such access is subject to reasonable
2783 restrictions adopted by the association.
2784 Section 26. This act shall take effect July 1, 2021.
