Bill Text: FL S0826 | 2016 | Regular Session | Comm Sub

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

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Bill Title: Mobile Homes

Spectrum: Slight Partisan Bill (? 2-1)

Status: (Passed) 2016-04-01 - Chapter No. 2016-169 [S0826 Detail]

Download: Florida-2016-S0826-Comm_Sub.html

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       Florida Senate - 2016                       CS for CS for SB 826
       
       
        
       By the Committees on Fiscal Policy; and Community Affairs; and
       Senator Latvala
       
       594-03338-16                                           2016826c2
    1                        A bill to be entitled                      
    2         An act relating to mobile homes; amending s. 723.006,
    3         F.S.; revising certain notice requirements for written
    4         complaints; requiring the Division of Florida
    5         Condominiums, Timeshares, and Mobile Homes to adopt
    6         rules to implement board member training requirements;
    7         providing notice and requirements of such rules;
    8         amending s. 723.031, F.S.; authorizing a mobile home
    9         park owner to pass on non-ad valorem assessments to a
   10         tenant under certain circumstances; providing that a
   11         mobile home park owner is deemed to have disclosed the
   12         passing on of certain taxes and assessments under
   13         certain circumstances; requiring the non-ad valorem
   14         assessments to be a part of the lot rental amount;
   15         requiring that a renewed rental agreement remain under
   16         the same terms unless certain notice is provided;
   17         amending s. 723.059, F.S.; authorizing a mobile home
   18         purchaser to cancel or rescind the contract to
   19         purchase under certain circumstances; amending s.
   20         723.075, F.S.; revising the rights that mobile home
   21         owners exercise if they form an association;
   22         authorizing mobile home owners to become members upon
   23         incorporation of the association; defining the terms
   24         “member” and “shareholder”; deleting provisions
   25         relating to memberships of successors to home owners;
   26         amending s. 723.078, F.S.; specifying voting
   27         requirements for homeowners’ associations; specifying
   28         the requirements for a majority of votes; authorizing
   29         members to vote by secret ballot and absentee ballot;
   30         prohibiting the tape recording or videotaping of
   31         meetings between the board of directors or its
   32         committees and the park owner; amending s. 723.0781,
   33         F.S.; providing a date on which certain provisions are
   34         effective; providing that board members may not be
   35         considered in violation of such provisions until after
   36         a specified date; providing an effective date.
   37          
   38  Be It Enacted by the Legislature of the State of Florida:
   39  
   40         Section 1. Subsection (6) of section 723.006, Florida
   41  Statutes, is amended, and subsection (15) is added to that
   42  section, to read:
   43         723.006 Powers and duties of division.—In performing its
   44  duties, the division has the following powers and duties:
   45         (6) With regard to any written complaint alleging a
   46  violation of any provision of this chapter or any rule adopted
   47  promulgated pursuant thereto, the division shall, within 30 days
   48  after receipt of a written complaint, periodically notify, in
   49  writing, the person who filed the complaint of the status of the
   50  complaint. Thereafter, the division shall notify the complainant
   51  of the status of the investigation within 90 days after receipt
   52  of the written complaint. Upon completion of the investigation,
   53  the division investigation, whether probable cause has been
   54  found, and the status of any administrative action, civil
   55  action, or appellate action, and if the division has found that
   56  probable cause exists, it shall notify, in writing, the
   57  complainant and the party complained against of the results of
   58  the investigation and disposition of the complaint.
   59         (15) The division shall adopt rules to implement the board
   60  member training requirements for educational programs as
   61  provided in this chapter. The Department of Business and
   62  Professional Regulation shall publish a notice of proposed rule
   63  pursuant to s. 120.54(3)(a) by October 1, 2016. Such rules shall
   64  include the requirements for content and notice of the board
   65  member training program to assure that providers meet minimum
   66  training requirements.
   67         Section 2. Subsection (5) of section 723.031, Florida
   68  Statutes, is amended to read:
   69         723.031 Mobile home lot rental agreements.—
   70         (5) The rental agreement shall contain the lot rental
   71  amount and services included. An increase in lot rental amount
   72  upon expiration of the term of the lot rental agreement shall be
   73  in accordance with ss. 723.033 and 723.037 or s. 723.059(4),
   74  whichever is applicable, provided that, pursuant to s.
   75  723.059(4), the amount of the lot rental increase is disclosed
   76  and agreed to by the purchaser, in writing. An increase in lot
   77  rental amount shall not be arbitrary or discriminatory between
   78  similarly situated tenants in the park. A No lot rental amount
   79  may not be increased during the term of the lot rental
   80  agreement, except:
   81         (a) When the manner of the increase is disclosed in a lot
   82  rental agreement with a term exceeding 12 months and which
   83  provides for such increases not more frequently than annually.
   84         (b) For pass-through charges as defined in s. 723.003.
   85         (c) That a no charge may not be collected which that
   86  results in payment of money for sums previously collected as
   87  part of the lot rental amount. The provisions hereof
   88  notwithstanding, the mobile home park owner may pass on, at any
   89  time during the term of the lot rental agreement, ad valorem
   90  property taxes, non-ad valorem assessments, and utility charges,
   91  or increases of either, provided that the ad valorem property
   92  taxes, non-ad valorem assessments, and the utility charges are
   93  not otherwise being collected in the remainder of the lot rental
   94  amount and provided further that the passing on of such ad
   95  valorem taxes, non-ad valorem assessments, or utility charges,
   96  or increases of either, was disclosed prior to tenancy, was
   97  being passed on as a matter of custom between the mobile home
   98  park owner and the mobile home owner, or such passing on was
   99  authorized by law. A park owner is deemed to have disclosed the
  100  passing on of ad valorem property taxes and non-ad valorem
  101  assessments if ad valorem property taxes or non-ad valorem
  102  assessments were disclosed as a factor for increasing the lot
  103  rental amount in the prospectus or rental agreement. Such ad
  104  valorem taxes, non-ad valorem assessments, and utility charges
  105  shall be a part of the lot rental amount as defined by this
  106  chapter. The term “non-ad valorem assessments” has the same
  107  meaning as provided in s. 197.3632(1)(d). Other provisions of
  108  this chapter notwithstanding, pass-on charges may be passed on
  109  only within 1 year of the date a mobile home park owner remits
  110  payment of the charge. A mobile home park owner is prohibited
  111  from passing on any fine, interest, fee, or increase in a charge
  112  resulting from a park owner’s payment of the charge after the
  113  date such charges become delinquent. Nothing herein shall
  114  prohibit a park owner and a homeowner from mutually agreeing to
  115  an alternative manner of payment to the park owner of the
  116  charges.
  117         (d) If a notice of increase in lot rental amount is not
  118  given 90 days before the renewal date of the rental agreement,
  119  the rental agreement must remain under the same terms until a
  120  90-day notice of increase in lot rental amount is given. The
  121  notice may provide for a rental term shorter than 1 year in
  122  order to maintain the same renewal date.
  123         Section 3. Subsection (1) of section 723.059, Florida
  124  Statutes, is amended to read:
  125         723.059 Rights of purchaser.—
  126         (1) The purchaser of a mobile home within a mobile home
  127  park may become a tenant of the park if such purchaser would
  128  otherwise qualify with the requirements of entry into the park
  129  under the park rules and regulations, subject to the approval of
  130  the park owner, but such approval may not be unreasonably
  131  withheld. The purchaser of the mobile home may cancel or rescind
  132  the contract for purchase of the mobile home if the purchaser’s
  133  tenancy has not been approved by the park owner 5 days before
  134  the closing of the purchase.
  135         Section 4. Subsection (1) of section 723.075, Florida
  136  Statutes, is amended to read:
  137         723.075 Homeowners’ associations.—
  138         (1) In order to exercise the rights of a homeowners’
  139  association as provided in this chapter s. 723.071, the mobile
  140  home owners shall form an association in compliance with this
  141  section and ss. 723.077, 723.078, and 723.079, which shall be a
  142  corporation for profit or not for profit and of which not less
  143  than two-thirds of all of the mobile home owners within the park
  144  shall have consented, in writing, to become members or
  145  shareholders. Upon incorporation of the association such consent
  146  by two-thirds of the mobile home owners, all consenting mobile
  147  home owners in the park may become members or shareholders. The
  148  term “member” or “shareholder” means a mobile home owner who
  149  consents to be bound by the articles of incorporation, bylaws,
  150  and policies of the incorporated homeowners’ association and
  151  their successors shall become members of the association and
  152  shall be bound by the provisions of the articles of
  153  incorporation, the bylaws of the association, and such
  154  restrictions as may be properly promulgated pursuant thereto.
  155  The association may not shall have a no member or shareholder
  156  who is not a bona fide owner of a mobile home located in the
  157  park. Upon incorporation and service of the notice described in
  158  s. 723.076, the association shall become the representative of
  159  all the mobile home owners in all matters relating to this
  160  chapter, regardless of whether the homeowner is a member of the
  161  association.
  162         Section 5. Paragraphs (b) and (c) of subsection (2) of
  163  section 723.078, Florida Statutes, are amended to read:
  164         723.078 Bylaws of homeowners’ associations.—
  165         (2) The bylaws shall provide and, if they do not, shall be
  166  deemed to include, the following provisions:
  167         (b) Quorum; voting requirements; proxies.—
  168         1. Unless otherwise provided in the bylaws, 30 percent of
  169  the total membership is required to constitute a quorum.
  170  Decisions shall be made by a majority of members represented at
  171  a meeting at which a quorum is present.
  172         2. A member may not vote by general proxy but may vote by
  173  limited proxies substantially conforming to a limited proxy form
  174  adopted by the division. Limited proxies and general proxies may
  175  be used to establish a quorum. Limited proxies may be used for
  176  votes taken to amend the articles of incorporation or bylaws
  177  pursuant to this section, and any other matters for which this
  178  chapter requires or permits a vote of members, except that no
  179  proxy, limited or general, may be used in the election of board
  180  members. If a mobile home or subdivision lot is owned jointly,
  181  the owners of the mobile home or subdivision lot must be counted
  182  as one for the purpose of determining the number of votes
  183  required for a majority. Only one vote per mobile home or
  184  subdivision lot shall be counted. Any number greater than 50
  185  percent of the total number of votes constitutes a majority.
  186  Notwithstanding the provisions of this section, members may vote
  187  in person at member meetings or by secret ballot, including
  188  absentee ballots, as defined by the division.
  189         3. A proxy is effective only for the specific meeting for
  190  which originally given and any lawfully adjourned meetings
  191  thereof. In no event shall any proxy be valid for a period
  192  longer than 90 days after the date of the first meeting for
  193  which it was given. Every proxy shall be revocable at any time
  194  at the pleasure of the member executing it.
  195         4. A member of the board of directors or a committee may
  196  submit in writing his or her agreement or disagreement with any
  197  action taken at a meeting that the member did not attend. This
  198  agreement or disagreement may not be used as a vote for or
  199  against the action taken and may not be used for the purposes of
  200  creating a quorum.
  201         (c) Board of directors’ and committee meetings.—
  202         1. Meetings of the board of directors and meetings of its
  203  committees at which a quorum is present shall be open to all
  204  members. Notwithstanding any other provision of law, the
  205  requirement that board meetings and committee meetings be open
  206  to the members does not apply to board or committee meetings
  207  held for the purpose of discussing personnel matters or meetings
  208  between the board or a committee and the association’s attorney,
  209  with respect to potential or pending litigation, where the
  210  meeting is held for the purpose of seeking or rendering legal
  211  advice, and where the contents of the discussion would otherwise
  212  be governed by the attorney-client privilege. Notice of meetings
  213  shall be posted in a conspicuous place upon the park property at
  214  least 48 hours in advance, except in an emergency. Notice of any
  215  meeting in which assessments against members are to be
  216  considered for any reason shall specifically contain a statement
  217  that assessments will be considered and the nature of such
  218  assessments.
  219         2. A board or committee member’s participation in a meeting
  220  via telephone, real-time videoconferencing, or similar real-time
  221  telephonic, electronic, or video communication counts toward a
  222  quorum, and such member may vote as if physically present. A
  223  speaker shall be used so that the conversation of those board or
  224  committee members attending by telephone may be heard by the
  225  board or committee members attending in person, as well as by
  226  members present at a meeting.
  227         3. Members of the board of directors may use e-mail as a
  228  means of communication but may not cast a vote on an association
  229  matter via e-mail.
  230         4. The right to attend meetings of the board of directors
  231  and its committees includes the right to speak at such meetings
  232  with reference to all designated agenda items. The association
  233  may adopt reasonable written rules governing the frequency,
  234  duration, and manner of members’ statements. Any item not
  235  included on the notice may be taken up on an emergency basis by
  236  at least a majority plus one of the members of the board. Such
  237  emergency action shall be noticed and ratified at the next
  238  regular meeting of the board. Any member may tape record or
  239  videotape meetings of the board of directors and its committees,
  240  except meetings between the board of directors or its appointed
  241  homeowners’ committee and the park owner. The division shall
  242  adopt reasonable rules governing the tape recording and
  243  videotaping of the meeting.
  244         5. Except as provided in paragraph (i), a vacancy occurring
  245  on the board of directors may be filled by the affirmative vote
  246  of the majority of the remaining directors, even though the
  247  remaining directors constitute less than a quorum; by the sole
  248  remaining director; if the vacancy is not so filled or if no
  249  director remains, by the members; or, on the application of any
  250  person, by the circuit court of the county in which the
  251  registered office of the corporation is located.
  252         6. The term of a director elected or appointed to fill a
  253  vacancy expires at the next annual meeting at which directors
  254  are elected. A directorship to be filled by reason of an
  255  increase in the number of directors may be filled by the board
  256  of directors, but only for the term of office continuing until
  257  the next election of directors by the members.
  258         7. A vacancy that will occur at a specific later date, by
  259  reason of a resignation effective at a later date, may be filled
  260  before the vacancy occurs. However, the new director may not
  261  take office until the vacancy occurs.
  262         8.a. The officers and directors of the association have a
  263  fiduciary relationship to the members.
  264         b. A director and committee member shall discharge his or
  265  her duties in good faith, with the care an ordinarily prudent
  266  person in a like position would exercise under similar
  267  circumstances, and in a manner he or she reasonably believes to
  268  be in the best interests of the corporation.
  269         9. In discharging his or her duties, a director may rely on
  270  information, opinions, reports, or statements, including
  271  financial statements and other financial data, if prepared or
  272  presented by:
  273         a. One or more officers or employees of the corporation who
  274  the director reasonably believes to be reliable and competent in
  275  the matters presented;
  276         b. Legal counsel, public accountants, or other persons as
  277  to matters the director reasonably believes are within the
  278  persons’ professional or expert competence; or
  279         c. A committee of the board of directors of which he or she
  280  is not a member if the director reasonably believes the
  281  committee merits confidence.
  282         10. A director is not acting in good faith if he or she has
  283  knowledge concerning the matter in question that makes reliance
  284  otherwise permitted by subparagraph 9. unwarranted.
  285         11. A director is not liable for any action taken as a
  286  director, or any failure to take any action, if he or she
  287  performed the duties of his or her office in compliance with
  288  this section.
  289         Section 6. Section 723.0781, Florida Statutes, is amended
  290  to read:
  291         723.0781 Board member training programs.—
  292         (1) Within 90 days after being elected or appointed to the
  293  board, a newly elected or appointed director shall certify by an
  294  affidavit in writing to the secretary of the association that he
  295  or she has read the association’s current articles of
  296  incorporation, bylaws, and the mobile home park’s prospectus,
  297  rental agreement, rules, regulations, and written policies; that
  298  he or she will work to uphold such documents and policies to the
  299  best of his or her ability; and that he or she will faithfully
  300  discharge his or her fiduciary responsibility to the
  301  association’s members.
  302         (2) In lieu of this written certification, within 90 days
  303  after being elected or appointed to the board, the newly elected
  304  or appointed director may submit a certificate of having
  305  satisfactorily completed the educational curriculum approved by
  306  the division within 1 year before or 90 days after the date of
  307  election or appointment. The educational certificate is valid
  308  and does not have to be resubmitted as long as the director
  309  serves on the board without interruption.
  310         (3) A director who fails to timely file the written
  311  certification or educational certificate is suspended from
  312  service on the board until he or she complies with this section.
  313  The board may temporarily fill the vacancy during the period of
  314  suspension.
  315         (4) The secretary of the association shall retain a
  316  director’s written certification or educational certificate for
  317  inspection by the members for 5 years after the director’s
  318  election or the duration of the director’s uninterrupted tenure,
  319  whichever is longer. Failure to have such written certification
  320  or educational certificate on file does not affect the validity
  321  of any board action.
  322         (5) This section becomes effective on October 1, 2016. Any
  323  member of the board of directors of a homeowners’ association
  324  not in compliance with the requirements of this section may not
  325  be considered in violation of this section until after October
  326  1, 2017.
  327         Section 7. This act shall take effect July 1, 2016.