August 22, 2019
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_h0115c1
CS/HB 115

1
A bill to be entitled
2An act relating to residential properties; amending s.
334.01, F.S.; correcting a cross-reference to conform to
4changes made by the act; amending s. 468.436, F.S.;
5revising a ground for disciplinary action relating to
6misconduct or negligence; requiring the Department of
7Business and Professional Regulation to enter an order
8permanently revoking the license of a community
9association manager under certain circumstances; amending
10s. 718.103, F.S.; revising the definition of the term
11"developer" to exclude a bulk assignee or bulk buyer;
12amending s. 718.111, F.S.; providing requirements for an
13association to borrow funds or commit to a line of credit,
14including a meeting of the board of administration and
15prior notice; providing requirements for association
16access to a unit, including prior notice; providing an
17exception for emergencies; amending s. 718.112, F.S.;
18revising notice requirements for board of administration
19meetings; revising requirements for the reappointment of
20certain board members; providing an exception to the
21expiration of the terms of members of certain boards;
22revising board eligibility requirements; revising notice
23requirements for board candidates; establishing
24requirements for newly elected board members; providing
25requirements for bylaw amendments by a board of
26administration; amending s. 718.115, F.S.; requiring that
27certain services obtained pursuant to a bulk contract as
28provided in the declaration be deemed a common expense;
29requiring that such contracts contain certain provisions;
30authorizing the cancellation of certain contracts;
31amending s. 718.116, F.S.; authorizing association demands
32for assessment payments from tenants of delinquent owners
33during pendency of a foreclosure action of a condominium
34unit; providing for notice; providing for credits against
35rent for assessment payments by tenants; providing for
36eviction proceedings for nonpayment; providing for effect
37of provisions on rights and duties of the tenant and
38association; providing that payments from tenants shall
39not be considered a breach of any lease between the tenant
40and the unit owner nor serve as cause for eviction or
41other action for failure to pay rent; limiting the amount
42of assessments for which a tenant is held responsible;
43amending s. 718.1265, F.S.; limiting the exercise of
44specified special powers under a declared state of
45emergency unless a certain number of units are rendered
46uninhabitable by the emergency; amending s. 718.301, F.S.;
47revising conditions under which unit owners other than the
48developer may elect not less than a majority of the
49members of the board of administration of an association;
50amending s. 718.303, F.S.; revising provisions relating to
51levy of fines; providing for suspension of certain rights
52of access and voting rights under certain circumstances
53relating to nonpayment of assessments, fines, or other
54charges payable to the association; amending s. 718.501,
55F.S.; providing for jurisdiction of the Division of
56Florida Condominiums, Timeshares, and Mobile Homes of the
57department to investigate complaints concerning failure to
58maintain common elements; prohibiting an officer or
59director from acting as such for a specified period after
60having been found to have committed specified violations;
61providing for payment of restitution and costs of
62investigation and prosecution in certain circumstances;
63amending s. 718.5012, F.S.; providing a responsibility of
64the ombudsman to prepare and adopt a "Florida Condominium
65Handbook"; requiring the publishing and updating of the
66handbook to be done in conjunction with the division;
67providing the purpose of the handbook; requiring the
68handbook to be published on the ombudsman's Internet
69website; creating part VII of ch. 718, F.S., relating to
70distressed condominium relief; creating s. 718.701, F.S.;
71providing a short title; creating s. 718.702, F.S.;
72providing legislative findings and intent; creating s.
73718.703, F.S.; defining the terms "bulk assignee" and
74"bulk buyer"; creating s. 718.704, F.S.; providing for the
75assignment of developer rights to and the assumption of
76developer rights by a bulk assignee; specifying
77liabilities of bulk assignees and bulk buyers; providing
78exceptions; providing additional responsibilities of bulk
79assignees and bulk buyers; authorizing certain entities to
80assign developer rights to a bulk assignee; limiting the
81number of bulk assignees at any given time; creating s.
82718.705, F.S.; providing for the transfer of control of a
83board of administration; providing effects of such
84transfer on parcels acquired by a bulk assignee; providing
85obligations of a bulk assignee upon the transfer of
86control of a board of administration; requiring that a
87bulk assignee certify certain information in writing;
88providing for the resolution of a conflict between
89specified provisions of state law; providing that the
90failure of a bulk assignee or bulk buyer to comply with
91specified provisions of state law results in the loss of
92certain protections and exemptions; creating s. 718.706,
93F.S.; requiring that a bulk assignee or bulk buyer file
94certain information with the division before offering any
95units for sale or lease in excess of a specified term;
96requiring that a copy of such information be provided to a
97prospective purchaser; requiring that certain contracts
98and disclosure statements contain specified statements;
99requiring that a bulk assignee or bulk buyer comply with
100certain disclosure requirements; prohibiting a bulk
101assignee from taking certain actions on behalf of an
102association while the bulk assignee is in control of the
103board of administration of the association and requiring
104that such bulk assignee comply with certain requirements;
105requiring that a bulk assignee or bulk buyer comply with
106certain requirements regarding certain contracts;
107providing unit owners with specified protections regarding
108certain contracts; requiring that a bulk buyer comply with
109certain requirements regarding the transfer of a unit;
110creating s. 718.707, F.S.; prohibiting a person from being
111classified as a bulk assignee or bulk buyer unless
112condominium parcels were acquired before a specified date;
113providing for the determination of the date of acquisition
114of a parcel; creating s. 718.708, F.S.; providing that the
115assignment of developer rights to a bulk assignee or bulk
116buyer does not release a developer from certain
117liabilities; preserving certain liabilities for certain
118parties; amending s. 720.302, F.S.; correcting a cross-
119reference to conform to changes made by the act;
120establishing legislative intent; amending s. 720.303,
121F.S.; revising provisions relating to homeowners'
122association board meetings, inspection and copying of
123records, reserve accounts of budgets, and recall of
124directors; prohibiting a salary or compensation for
125certain association personnel; providing exceptions;
126providing requirements for the borrowing of funds or
127committing to a line of credit by the board; providing
128requirements relating to transfer fees; amending s.
129720.304, F.S.; revising requirements with respect to the
130display of flags; amending s. 720.305, F.S.; authorizing
131fines assessed against members which exceed a certain
132amount to become a lien against a parcel; amending s.
133720.306, F.S.; providing requirements for secret ballots;
134requiring newly elected members of a board of directors to
135make certain certifications in writing to the association;
136providing for disqualification for failure to make such
137certifications; requiring an association to retain
138certifications for a specified time; amending s. 720.3085,
139F.S.; requiring a tenant in a unit in which the regular
140assessments are delinquent to pay future regular
141assessments to the association; requiring notice;
142providing for eviction by the association; specifying
143rights of the tenant; providing that payments from tenants
144shall not be considered a breach of any lease between the
145tenant and the homeowner nor serve as cause for eviction
146or other action for failure to pay rent; limiting the
147amount of assessments for which a tenant is held
148responsible; creating s. 720.3095, F.S.; providing
149requirements of maintenance and management contracts of a
150homeowners' association; requiring disclosures; providing
151a penalty; providing exceptions; creating s. 720.3096,
152F.S.; limiting contracts entered into by a homeowners'
153association; providing requirements for such contracts;
154repealing s. 720.311, F.S., relating to a procedure for
155dispute resolution in homeowners' associations; amending
156s. 720.401, F.S.; requiring that the disclosure summary to
157prospective parcel owners include additional provisions;
158creating part IV of ch. 720, F.S., relating to dispute
159resolution; creating s. 720.501, F.S.; providing a short
160title; creating s. 720.502, F.S.; providing legislative
161findings; creating s. 720.503, F.S.; specifying
162applicability of provisions for mediation and arbitration
163of disputes in homeowners' associations; providing
164exceptions; providing for injunctive relief; providing for
165the tolling of applicable statutes of limitations;
166creating s. 720.504, F.S.; requiring that the notice of
167dispute be delivered before referral to mediation or
168arbitration; providing notice requirements; creating s.
169720.505, F.S.; creating a statutory notice form for
170referral to mediation; providing delivery requirements;
171requiring parties to share costs; requiring the selection
172of a mediator and times to meet; providing penalties for
173failure to mediate; creating s. 720.506, F.S.; creating an
174opt-out provision and procedures; creating s. 720.507,
175F.S.; creating a statutory notice form for referral to
176arbitration; providing delivery requirements; requiring
177parties to share costs; requiring the selection of an
178arbitrator and times to meet; providing penalties for
179failure to arbitrate; providing subpoena powers and
180requirements; providing requirements for and repercussions
181of subsequent judicial resolution of the dispute; creating
182s. 720.508, F.S.; providing for rules of procedure;
183providing for confidentiality; providing applicability to
184other rules of procedure and provisions of law; specifying
185that arbitration awards have certain precedential value;
186creating s. 720.509, F.S.; specifying qualifications for
187mediators and arbitrators; creating s. 720.510, F.S.;
188providing for enforcement of mediation agreements and
189arbitration awards; requiring all new residential
190construction in a deed-restricted community that requires
191mandatory membership in the association under specified
192provisions of Florida law to comply with specified
193provisions of federal law; providing an effective date.
194
195Be It Enacted by the Legislature of the State of Florida:
196
197     Section 1.  Paragraph (d) of subsection (1) of section
19834.01, Florida Statutes, is amended to read:
199     34.01  Jurisdiction of county court.-
200     (1)  County courts shall have original jurisdiction:
201     (d)  Of disputes occurring in the homeowners' associations
202as described in part IV of chapter 720 s. 720.311(2)(a), which
203shall be concurrent with jurisdiction of the circuit courts.
204     Section 2.  Paragraph (b) of subsection (2) of section
205468.436, Florida Statutes, is amended, and subsection (6) is
206added to that section, to read:
207     468.436  Disciplinary proceedings.-
208     (2)  The following acts constitute grounds for which the
209disciplinary actions in subsection (4) may be taken:
210     (b)1.  Violation of any provision of this part.
211     2.  Violation of any lawful order or rule rendered or
212adopted by the department or the council.
213     3.  Being convicted of or pleading nolo contendere to a
214felony in any court in the United States.
215     4.  Obtaining a license or certification or any other
216order, ruling, or authorization by means of fraud,
217misrepresentation, or concealment of material facts.
218     5.  Committing acts of gross misconduct or gross negligence
219in connection with the profession.
220     6.  Contracting, on behalf of an association, with any
221entity in which the licensee has a financial interest that is
222not disclosed.
223     (6)  Upon the fifth or later finding that a community
224association manager is guilty of any of the grounds set forth in
225subsection (2), or upon the third or later finding that a
226community association manager is guilty of a specific ground for
227which the disciplinary actions set forth in subsection (2) may
228be taken, the department's discretion under subsection (4) shall
229not apply and the division shall enter an order permanently
230revoking the license.
231     Section 3.  Subsection (16) of section 718.103, Florida
232Statutes, is amended to read:
233     718.103  Definitions.-As used in this chapter, the term:
234     (16)  "Developer" means a person who creates a condominium
235or offers condominium parcels for sale or lease in the ordinary
236course of business, but does not include:
237     (a)  An owner or lessee of a condominium or cooperative
238unit who has acquired the unit for his or her own occupancy;,
239nor does it include
240     (b)  A cooperative association which creates a condominium
241by conversion of an existing residential cooperative after
242control of the association has been transferred to the unit
243owners if, following the conversion, the unit owners will be the
244same persons who were unit owners of the cooperative and no
245units are offered for sale or lease to the public as part of the
246plan of conversion;.
247     (c)  A bulk assignee or bulk buyer as defined in s.
248718.703; or
249     (d)  A state, county, or municipal entity is not a
250developer for any purposes under this act when it is acting as a
251lessor and not otherwise named as a developer in the declaration
252of condominium association.
253     Section 4.  Subsections (3) and (5) of section 718.111,
254Florida Statutes, are amended to read:
255     718.111  The association.-
256     (3)  POWER TO MANAGE CONDOMINIUM PROPERTY AND TO CONTRACT,
257SUE, AND BE SUED.-
258     (a)  The association may contract, sue, or be sued with
259respect to the exercise or nonexercise of its powers. For these
260purposes, the powers of the association include, but are not
261limited to, the maintenance, management, and operation of the
262condominium property.
263     (b)  After control of the association is obtained by unit
264owners other than the developer, the association may institute,
265maintain, settle, or appeal actions or hearings in its name on
266behalf of all unit owners concerning matters of common interest
267to most or all unit owners, including, but not limited to, the
268common elements; the roof and structural components of a
269building or other improvements; mechanical, electrical, and
270plumbing elements serving an improvement or a building;
271representations of the developer pertaining to any existing or
272proposed commonly used facilities; and protesting ad valorem
273taxes on commonly used facilities and on units; and may defend
274actions in eminent domain or bring inverse condemnation actions.
275     (c)  If the association has the authority to maintain a
276class action, the association may be joined in an action as
277representative of that class with reference to litigation and
278disputes involving the matters for which the association could
279bring a class action. Nothing herein limits any statutory or
280common-law right of any individual unit owner or class of unit
281owners to bring any action without participation by the
282association which may otherwise be available.
283     (d)  The borrowing of funds or committing to a line of
284credit by the board of administration shall be considered a
285special assessment, and any meeting of the board of
286administration to discuss such matters must be noticed as
287provided in s. 718.112(2)(c). The board may not borrow funds or
288enter into a line of credit for any purpose unless the specific
289use of the funds from the loan or line of credit is set forth in
290the notice of meeting with the same specificity as required for
291a special assessment or unless the borrowing or line of credit
292has received the prior approval of at least two-thirds of the
293voting interests of the association.
294     (5)  RIGHT OF ACCESS TO UNITS.-The association has the
295irrevocable right of access to each unit during reasonable
296hours, when necessary for the maintenance, repair, or
297replacement of any common elements or of any portion of a unit
298to be maintained by the association pursuant to the declaration
299or as necessary to prevent damage to the common elements or to a
300unit or units. Except in cases of emergency, the association
301must give the unit owner advance written notice of not less than
30224 hours of its intent to access the unit and such access must
303be by two persons, one of whom must be a member of the board of
304administration or a manager or employee of the association and
305one of whom must be an authorized representative of the
306association. The identity of the authorized representative
307seeking access to the unit shall be provided to the unit owner
308prior to entering the unit.
309     Section 5.  Paragraphs (b), (c), (d), and (h) of subsection
310(2) of section 718.112, Florida Statutes, are amended to read:
311     718.112  Bylaws.-
312     (2)  REQUIRED PROVISIONS.-The bylaws shall provide for the
313following and, if they do not do so, shall be deemed to include
314the following:
315     (b)  Quorum; voting requirements; proxies.-
316     1.  Unless a lower number is provided in the bylaws, the
317percentage of voting interests required to constitute a quorum
318at a meeting of the members shall be a majority of the voting
319interests. Unless otherwise provided in this chapter or in the
320declaration, articles of incorporation, or bylaws, and except as
321provided in sub-subparagraph subparagraph (d)3.a., decisions
322shall be made by owners of a majority of the voting interests
323represented at a meeting at which a quorum is present.
324     2.  Except as specifically otherwise provided herein, after
325January 1, 1992, unit owners may not vote by general proxy, but
326may vote by limited proxies substantially conforming to a
327limited proxy form adopted by the division. No voting interest
328or consent right allocated to a unit owned by the association
329shall be exercised or considered for any purpose, whether for a
330quorum, an election, or otherwise. Limited proxies and general
331proxies may be used to establish a quorum. Limited proxies shall
332be used for votes taken to waive or reduce reserves in
333accordance with subparagraph (f)2.; for votes taken to waive the
334financial reporting requirements of s. 718.111(13); for votes
335taken to amend the declaration pursuant to s. 718.110; for votes
336taken to amend the articles of incorporation or bylaws pursuant
337to this section; and for any other matter for which this chapter
338requires or permits a vote of the unit owners. Except as
339provided in paragraph (d), after January 1, 1992, no proxy,
340limited or general, shall be used in the election of board
341members. General proxies may be used for other matters for which
342limited proxies are not required, and may also be used in voting
343for nonsubstantive changes to items for which a limited proxy is
344required and given. Notwithstanding the provisions of this
345subparagraph, unit owners may vote in person at unit owner
346meetings. Nothing contained herein shall limit the use of
347general proxies or require the use of limited proxies for any
348agenda item or election at any meeting of a timeshare
349condominium association.
350     3.  Any proxy given shall be effective only for the
351specific meeting for which originally given and any lawfully
352adjourned meetings thereof. In no event shall any proxy be valid
353for a period longer than 90 days after the date of the first
354meeting for which it was given. Every proxy is revocable at any
355time at the pleasure of the unit owner executing it.
356     4.  A member of the board of administration or a committee
357may submit in writing his or her agreement or disagreement with
358any action taken at a meeting that the member did not attend.
359This agreement or disagreement may not be used as a vote for or
360against the action taken and may not be used for the purposes of
361creating a quorum.
362     5.  When any of the board or committee members meet by
363telephone conference, those board or committee members attending
364by telephone conference may be counted toward obtaining a quorum
365and may vote by telephone. A telephone speaker must be used so
366that the conversation of those board or committee members
367attending by telephone may be heard by the board or committee
368members attending in person as well as by any unit owners
369present at a meeting.
370     (c)  Board of administration meetings.-Meetings of the
371board of administration at which a quorum of the members is
372present shall be open to all unit owners. Any unit owner may
373tape record or videotape meetings of the board of
374administration. The right to attend such meetings includes the
375right to speak at such meetings with reference to all designated
376agenda items. The division shall adopt reasonable rules
377governing the tape recording and videotaping of the meeting. The
378association may adopt written reasonable rules governing the
379frequency, duration, and manner of unit owner statements.
380Adequate notice of all meetings, which notice shall specifically
381incorporate an identification of agenda items, shall be posted
382conspicuously on the condominium property at least 48 continuous
383hours preceding the meeting except in an emergency. If 20
384percent of the voting interests petition the board to address an
385item of business, the board shall at its next regular board
386meeting or at a special meeting of the board, but not later than
38760 days after the receipt of the petition, place the item on the
388agenda. Any item not included on the notice may be taken up on
389an emergency basis by at least a majority plus one of the
390members of the board. Such emergency action shall be noticed and
391ratified at the next regular meeting of the board. However,
392written notice of any meeting at which nonemergency special
393assessments, or at which amendment to rules regarding unit use,
394will be considered shall be mailed, delivered, or electronically
395transmitted to the unit owners and posted conspicuously on the
396condominium property not less than 14 days prior to the meeting.
397Evidence of compliance with this 14-day notice shall be made by
398an affidavit executed by the person providing the notice and
399filed among the official records of the association. Upon notice
400to the unit owners, the board shall by duly adopted rule
401designate a specific location on the condominium property or
402association property upon which all notices of board meetings
403shall be posted. If there is no condominium property or
404association property upon which notices can be posted, notices
405of board meetings shall be mailed, delivered, or electronically
406transmitted at least 14 days before the meeting to the owner of
407each unit. In lieu of or in addition to the physical posting of
408notice of any meeting of the board of administration on the
409condominium property, the association may, by reasonable rule,
410adopt a procedure for conspicuously posting and repeatedly
411broadcasting the notice and the agenda on a closed-circuit cable
412television system serving the condominium association. However,
413if broadcast notice is used in lieu of a notice posted
414physically on the condominium property, the notice and agenda
415must be broadcast at least four times every broadcast hour of
416each day that a posted notice is otherwise required under this
417section. When broadcast notice is provided, the notice and
418agenda must be broadcast in a manner and for a sufficient
419continuous length of time so as to allow an average reader to
420observe the notice and read and comprehend the entire content of
421the notice and the agenda. Notice of any meeting in which
422regular or special assessments against unit owners are to be
423considered for any reason shall specifically state that
424assessments will be considered and the nature of, the actual
425estimated cost of, and a description of the purposes for such
426assessments. Meetings of a committee to take final action on
427behalf of the board or make recommendations to the board
428regarding the association budget are subject to the provisions
429of this paragraph. Meetings of a committee that does not take
430final action on behalf of the board or make recommendations to
431the board regarding the association budget are subject to the
432provisions of this section, unless those meetings are exempted
433from this section by the bylaws of the association.
434Notwithstanding any other law, the requirement that board
435meetings and committee meetings be open to the unit owners is
436inapplicable to meetings between the board or a committee and
437the association's attorney, with respect to proposed or pending
438litigation, when the meeting is held for the purpose of seeking
439or rendering legal advice.
440     (d)  Unit owner meetings.-
441     1.  There shall be an annual meeting of the unit owners
442held at the location provided in the association bylaws and, if
443the bylaws are silent as to the location, the meeting shall be
444held within 45 miles of the condominium property. However, such
445distance requirement does not apply to an association governing
446a timeshare condominium. Unless the bylaws provide otherwise, a
447vacancy on the board caused by the expiration of a director's
448term shall be filled by electing a new board member, and the
449election shall be by secret ballot; however, if the number of
450vacancies equals or exceeds the number of candidates, no
451election is required. Except in an association governing a
452timeshare condominium, the terms of all members of the board
453shall expire at the annual meeting and such board members may
454stand for reelection unless otherwise permitted by the bylaws.
455In the event that the bylaws permit staggered terms of no more
456than 2 years and upon approval of a majority of the total voting
457interests, the association board members may serve 2-year
458staggered terms. If the number no person is interested in or
459demonstrates an intention to run for the position of a board
460members member whose terms have term has expired according to
461the provisions of this subparagraph exceeds the number of
462eligible association members showing interest in or
463demonstrating an intention to run for the vacant positions, each
464such board member whose term has expired shall become eligible
465for reappointment be automatically reappointed to the board of
466administration and need not stand for reelection. In a
467condominium association of more than 10 units, or in a
468condominium association that does not include timeshare units,
469coowners of a unit may not serve as members of the board of
470directors at the same time unless they own more than one unit
471and are not co-occupants of a unit or unless there is an
472insufficient number of eligible association members showing
473interest in or demonstrating an intention to run for the vacant
474positions on the board. Any unit owner desiring to be a
475candidate for board membership must shall comply with sub-
476subparagraph subparagraph 3.a. A person who has been suspended
477or removed by the division under this chapter, or who is
478delinquent in the payment of any fee, fine, or special or
479regular assessment as provided in paragraph (n), is not eligible
480for board membership. A person who has been convicted of any
481felony in this state or in a United States District or
482Territorial Court, or who has been convicted of any offense in
483another jurisdiction that would be considered a felony if
484committed in this state, is not eligible for board membership
485unless such felon's civil rights have been restored for a period
486of no less than 5 years as of the date on which such person
487seeks election to the board. The validity of an action by the
488board is not affected if it is later determined that a member of
489the board is ineligible for board membership due to having been
490convicted of a felony.
491     2.  The bylaws shall provide the method of calling meetings
492of unit owners, including annual meetings. Written notice, which
493notice must include an agenda, shall be mailed, hand delivered,
494or electronically transmitted to each unit owner at least 14
495days prior to the annual meeting and shall be posted in a
496conspicuous place on the condominium property at least 14
497continuous days preceding the annual meeting. Upon notice to the
498unit owners, the board shall by duly adopted rule designate a
499specific location on the condominium property or association
500property upon which all notices of unit owner meetings shall be
501posted; however, if there is no condominium property or
502association property upon which notices can be posted, this
503requirement does not apply. In lieu of or in addition to the
504physical posting of notice of any meeting of the unit owners on
505the condominium property, the association may, by reasonable
506rule, adopt a procedure for conspicuously posting and repeatedly
507broadcasting the notice and the agenda on a closed-circuit cable
508television system serving the condominium association. However,
509if broadcast notice is used in lieu of a notice posted
510physically on the condominium property, the notice and agenda
511must be broadcast at least four times every broadcast hour of
512each day that a posted notice is otherwise required under this
513section. When broadcast notice is provided, the notice and
514agenda must be broadcast in a manner and for a sufficient
515continuous length of time so as to allow an average reader to
516observe the notice and read and comprehend the entire content of
517the notice and the agenda. Unless a unit owner waives in writing
518the right to receive notice of the annual meeting, such notice
519shall be hand delivered, mailed, or electronically transmitted
520to each unit owner. Notice for meetings and notice for all other
521purposes shall be mailed to each unit owner at the address last
522furnished to the association by the unit owner, or hand
523delivered to each unit owner. However, if a unit is owned by
524more than one person, the association shall provide notice, for
525meetings and all other purposes, to that one address which the
526developer initially identifies for that purpose and thereafter
527as one or more of the owners of the unit shall so advise the
528association in writing, or if no address is given or the owners
529of the unit do not agree, to the address provided on the deed of
530record. An officer of the association, or the manager or other
531person providing notice of the association meeting, shall
532provide an affidavit or United States Postal Service certificate
533of mailing, to be included in the official records of the
534association affirming that the notice was mailed or hand
535delivered, in accordance with this provision.
536     3.a.  The members of the board shall be elected by written
537ballot or voting machine. Proxies shall in no event be used in
538electing the board, either in general elections or elections to
539fill vacancies caused by recall, resignation, or otherwise,
540unless otherwise provided in this chapter. Not less than 60 days
541before a scheduled election, the association shall mail,
542deliver, or electronically transmit, whether by separate
543association mailing or included in another association mailing,
544delivery, or transmission, including regularly published
545newsletters, to each unit owner entitled to a vote, a first
546notice of the date of the election along with a certification
547form provided by the division attesting that he or she has read
548and understands, to the best of his or her ability, the
549governing documents of the association and the provisions of
550this chapter and any applicable rules. Any unit owner or other
551eligible person desiring to be a candidate for the board must
552give written notice of his or her intent to be a candidate to
553the association not less than 40 days before a scheduled
554election. Together with the written notice and agenda as set
555forth in subparagraph 2., the association shall mail, deliver,
556or electronically transmit a second notice of the election to
557all unit owners entitled to vote therein, together with a ballot
558which shall list all candidates. Upon request of a candidate,
559the association shall include an information sheet, no larger
560than 8 1/2 inches by 11 inches, which must be furnished by the
561candidate not less than 35 days before the election, shall along
562with the signed certification form provided for in this
563subparagraph, to be included with the mailing, delivery, or
564transmission of the ballot, with the costs of mailing, delivery,
565or electronic transmission and copying to be borne by the
566association. The association is not liable for the contents of
567the information sheets prepared by the candidates. In order to
568reduce costs, the association may print or duplicate the
569information sheets on both sides of the paper. The division
570shall by rule establish voting procedures consistent with the
571provisions contained herein, including rules establishing
572procedures for giving notice by electronic transmission and
573rules providing for the secrecy of ballots. Elections shall be
574decided by a plurality of those ballots cast. There shall be no
575quorum requirement; however, at least 20 percent of the eligible
576voters must cast a ballot in order to have a valid election of
577members of the board. No unit owner shall permit any other
578person to vote his or her ballot, and any such ballots
579improperly cast shall be deemed invalid, provided any unit owner
580who violates this provision may be fined by the association in
581accordance with s. 718.303. A unit owner who needs assistance in
582casting the ballot for the reasons stated in s. 101.051 may
583obtain assistance in casting the ballot. The regular election
584shall occur on the date of the annual meeting. The provisions of
585this sub-subparagraph subparagraph shall not apply to timeshare
586condominium associations. Notwithstanding the provisions of this
587sub-subparagraph subparagraph, an election is not required
588unless more candidates file notices of intent to run or are
589nominated than board vacancies exist.
590     b.  Within 90 days after being elected to the board, each
591newly elected director shall certify in writing to the secretary
592of the association that he or she has read the association's
593declarations of covenants and restrictions, articles of
594incorporation, bylaws, and current written policies; that he or
595she will work to uphold such documents and policies to the best
596of his or her ability; and that he or she will faithfully
597discharge his or her fiduciary responsibility to the
598association's members. In lieu of this written certification,
599the newly elected director may submit a certificate of
600satisfactory completion of the educational curriculum
601administered by a division-approved condominium education
602provider. Failure to timely file the written certification or
603educational certificate automatically disqualifies the director
604from service on the board. The secretary shall cause the
605association to retain a director's written certification or
606educational certificate for inspection by the members for 5
607years after a director's election. Failure to have such written
608certification or educational certificate on file does not affect
609the validity of any appropriate action.
610     4.  Any approval by unit owners called for by this chapter
611or the applicable declaration or bylaws, including, but not
612limited to, the approval requirement in s. 718.111(8), shall be
613made at a duly noticed meeting of unit owners and shall be
614subject to all requirements of this chapter or the applicable
615condominium documents relating to unit owner decisionmaking,
616except that unit owners may take action by written agreement,
617without meetings, on matters for which action by written
618agreement without meetings is expressly allowed by the
619applicable bylaws or declaration or any statute that provides
620for such action.
621     5.  Unit owners may waive notice of specific meetings if
622allowed by the applicable bylaws or declaration or any statute.
623If authorized by the bylaws, notice of meetings of the board of
624administration, unit owner meetings, except unit owner meetings
625called to recall board members under paragraph (j), and
626committee meetings may be given by electronic transmission to
627unit owners who consent to receive notice by electronic
628transmission.
629     6.  Unit owners shall have the right to participate in
630meetings of unit owners with reference to all designated agenda
631items. However, the association may adopt reasonable rules
632governing the frequency, duration, and manner of unit owner
633participation.
634     7.  Any unit owner may tape record or videotape a meeting
635of the unit owners subject to reasonable rules adopted by the
636division.
637     8.  Unless otherwise provided in the bylaws, any vacancy
638occurring on the board before the expiration of a term may be
639filled by the affirmative vote of the majority of the remaining
640directors, even if the remaining directors constitute less than
641a quorum, or by the sole remaining director. In the alternative,
642a board may hold an election to fill the vacancy, in which case
643the election procedures must conform to the requirements of sub-
644subparagraph subparagraph 3.a. unless the association governs 10
645units or fewer less and has opted out of the statutory election
646process, in which case the bylaws of the association control.
647Unless otherwise provided in the bylaws, a board member
648appointed or elected under this section shall fill the vacancy
649for the unexpired term of the seat being filled. Filling
650vacancies created by recall is governed by paragraph (j) and
651rules adopted by the division.
652
653Notwithstanding subparagraph subparagraphs (b)2. and sub-
654subparagraph (d)3.a., an association of 10 or fewer units may,
655by the affirmative vote of a majority of the total voting
656interests, provide for different voting and election procedures
657in its bylaws, which vote may be by a proxy specifically
658delineating the different voting and election procedures. The
659different voting and election procedures may provide for
660elections to be conducted by limited or general proxy.     
661     (h)  Amendment of bylaws.-
662     1.  The method by which the bylaws may be amended
663consistent with the provisions of this chapter shall be stated.
664If the bylaws fail to provide a method of amendment, the bylaws
665may be amended if the amendment is approved by the owners of not
666less than two-thirds of the voting interests.
667     2.  No bylaw shall be revised or amended by reference to
668its title or number only. Proposals to amend existing bylaws
669shall contain the full text of the bylaws to be amended; new
670words shall be inserted in the text underlined, and words to be
671deleted shall be lined through with hyphens. However, if the
672proposed change is so extensive that this procedure would
673hinder, rather than assist, the understanding of the proposed
674amendment, it is not necessary to use underlining and hyphens as
675indicators of words added or deleted, but, instead, a notation
676must be inserted immediately preceding the proposed amendment in
677substantially the following language: "Substantial rewording of
678bylaw. See bylaw _____ for present text."
679     3.  Nonmaterial errors or omissions in the bylaw process
680will not invalidate an otherwise properly promulgated amendment.
681     4.  If the bylaws provide for amendment by the board of
682administration, no bylaw may be amended unless it is heard and
683noticed at two consecutive meetings of the board of
684administration that are at least 1 week apart.
685     Section 6.  Paragraph (d) of subsection (1) of section
686718.115, Florida Statutes, is amended to read:
687     718.115  Common expenses and common surplus.-
688     (1)
689     (d)  If so provided in the declaration, the cost of
690communications services as defined in chapter 202, information
691services, or Internet services a master antenna television
692system or duly franchised cable television service obtained
693pursuant to a bulk contract shall be deemed a common expense. If
694the declaration does not provide for the cost of communications
695services as defined in chapter 202, information services, or
696Internet services a master antenna television system or duly
697franchised cable television service obtained under a bulk
698contract as a common expense, the board may enter into such a
699contract, and the cost of the service will be a common expense
700but allocated on a per-unit basis rather than a percentage basis
701if the declaration provides for other than an equal sharing of
702common expenses, and any contract entered into before July 1,
7031998, in which the cost of the service is not equally divided
704among all unit owners, may be changed by vote of a majority of
705the voting interests present at a regular or special meeting of
706the association, to allocate the cost equally among all units.
707The contract shall be for a term of not less than 2 years.
708     1.  Any contract made by the board after the effective date
709hereof for communications services as defined in chapter 202,
710information services, or Internet services a community antenna
711system or duly franchised cable television service may be
712canceled by a majority of the voting interests present at the
713next regular or special meeting of the association. Any member
714may make a motion to cancel the said contract, but if no motion
715is made or if such motion fails to obtain the required majority
716at the next regular or special meeting, whichever occurs is
717sooner, following the making of the contract, then such contract
718shall be deemed ratified for the term therein expressed.
719     2.  Any such contract shall provide, and shall be deemed to
720provide if not expressly set forth, that any hearing-impaired or
721legally blind unit owner who does not occupy the unit with a
722non-hearing-impaired or sighted person, or any unit owner
723receiving supplemental security income under Title XVI of the
724Social Security Act or food stamps as administered by the
725Department of Children and Family Services pursuant to s.
726414.31, may discontinue the cable or video service without
727incurring disconnect fees, penalties, or subsequent service
728charges, and, as to such units, the owners shall not be required
729to pay any common expenses charge related to such service. If
730fewer less than all members of an association share the expenses
731of cable or video service television, the expense shall be
732shared equally by all participating unit owners. The association
733may use the provisions of s. 718.116 to enforce payment of the
734shares of such costs by the unit owners receiving cable or video
735service television.
736     Section 7.  Subsection (11) is added to section 718.116,
737Florida Statutes, to read:
738     718.116  Assessments; liability; lien and priority;
739interest; collection.-
740     (11)  During the pendency of any foreclosure action of a
741condominium unit, if the unit is occupied by a tenant and the
742unit owner is delinquent in the payment of regular assessments,
743the association may demand that the tenant pay to the
744association the future regular assessments related to the
745condominium unit. The demand shall be continuing in nature, and
746upon demand the tenant shall continue to pay the regular
747assessments to the association until the association releases
748the tenant or the tenant discontinues tenancy in the unit. The
749association shall mail written notice to the unit owner of the
750association's demand that the tenant pay regular assessments to
751the association. The tenant shall not be liable for increases in
752the amount of the regular assessment due unless the tenant was
753reasonably notified of the increase prior to the day that the
754rent is due. The tenant shall be given a credit against rents
755due to the unit owner in the amount of assessments paid to the
756association. The association shall, upon request, provide the
757tenant with written receipts for payments made. The association
758may issue notices under s. 83.56 and may sue for eviction under
759ss. 83.59-83.625 as if the association were a landlord under
760part II of chapter 83 should the tenant fail to pay an
761assessment. However, the association shall not otherwise be
762considered a landlord under chapter 83 and shall specifically
763not have any duty under s. 83.51. The tenant shall not, by
764virtue of payment of assessments, have any of the rights of a
765unit owner to vote in any election or to examine the books and
766records of the association. A court may supersede the effect of
767this subsection by appointing a receiver. Payments made by a
768tenant pursuant to this subsection in lieu of or as a credit
769against rent shall not be considered a breach of any lease
770between the tenant and the unit owner nor serve as cause for
771eviction or other action for failure to pay rent. Under no
772circumstances shall the amount of assessments for which a tenant
773is held responsible under this subsection exceed the amount owed
774in rent to the unit owner.
775     Section 8.  Subsection (2) of section 718.1265, Florida
776Statutes, is amended to read:
777     718.1265  Association emergency powers.-
778     (2)  The special powers authorized under subsection (1)
779shall be limited to that time reasonably necessary to protect
780the health, safety, and welfare of the association and the unit
781owners and the unit owners' family members, tenants, guests,
782agents, or invitees and shall be reasonably necessary to
783mitigate further damage and make emergency repairs.
784Additionally, unless 20 percent or more of the units are made
785uninhabitable by the emergency, the special powers authorized
786under subsection (1) may only be exercised during the term of
787the Governor's executive order or proclamation declaring the
788state of emergency in the locale in which the condominium is
789located.
790     Section 9.  Subsection (1) of section 718.301, Florida
791Statutes, is amended to read:
792     718.301  Transfer of association control; claims of defect
793by association.-
794     (1)  When unit owners other than the developer own 15
795percent or more of the units in a condominium that will be
796operated ultimately by an association, the unit owners other
797than the developer shall be entitled to elect no less than one-
798third of the members of the board of administration of the
799association. Unit owners other than the developer are entitled
800to elect not less than a majority of the members of the board of
801administration of an association:
802     (a)  Three years after 50 percent of the units that will be
803operated ultimately by the association have been conveyed to
804purchasers;
805     (b)  Three months after 90 percent of the units that will
806be operated ultimately by the association have been conveyed to
807purchasers;
808     (c)  When all the units that will be operated ultimately by
809the association have been completed, some of them have been
810conveyed to purchasers, and none of the others are being offered
811for sale by the developer in the ordinary course of business;
812     (d)  When some of the units have been conveyed to
813purchasers and none of the others are being constructed or
814offered for sale by the developer in the ordinary course of
815business;
816     (e)  When the developer files a petition seeking protection
817in bankruptcy;
818     (f)  When a receiver for the developer is appointed by a
819circuit court and is not discharged within 30 days after such
820appointment, unless the court determines within 30 days after
821appointment of the receiver that transfer of control would be
822detrimental to the association or its members; or
823     (g)  Seven years after recordation of the declaration of
824condominium; or, in the case of an association which may
825ultimately operate more than one condominium, 7 years after
826recordation of the declaration for the first condominium it
827operates; or, in the case of an association operating a phase
828condominium created pursuant to s. 718.403, 7 years after
829recordation of the declaration creating the initial phase,
830
831whichever occurs first. The developer is entitled to elect at
832least one member of the board of administration of an
833association as long as the developer holds for sale in the
834ordinary course of business at least 5 percent, in condominiums
835with fewer than 500 units, and 2 percent, in condominiums with
836more than 500 units, of the units in a condominium operated by
837the association. Following the time the developer relinquishes
838control of the association, the developer may exercise the right
839to vote any developer-owned units in the same manner as any
840other unit owner except for purposes of reacquiring control of
841the association or selecting the majority members of the board
842of administration.
843     Section 10.  Subsection (3) of section 718.303, Florida
844Statutes, is amended, and subsections (4) and (5) are added to
845that section, to read:
846     718.303  Obligations of owners; waiver; suspension of
847access or voting rights or levy of fine against unit by
848association.-
849     (3)  If a unit owner is delinquent for more than 90 days in
850the payment of regular or special assessments or the declaration
851or bylaws so provide, the association may suspend, for a
852reasonable time, the right of a unit owner or a unit's occupant,
853licensee, or invitee to use common elements, common facilities,
854or any other association property. This subsection does not
855apply to limited common elements intended to be used only by
856that unit, common elements that must be used to access the unit,
857utility services provided to the unit, parking spaces, or
858elevators. The association may also levy reasonable fines
859against a unit for the failure of the owner of the unit, or its
860occupant, licensee, or invitee, to comply with any provision of
861the declaration, the association bylaws, or reasonable rules of
862the association. No fine will become a lien against a unit. A No
863fine may not exceed $100 per violation. However, a fine may be
864levied on the basis of each day of a continuing violation, with
865a single notice and opportunity for hearing, provided that no
866such fine shall in the aggregate exceed $1,000. A No fine may
867not be levied and a suspension may not be imposed unless the
868association first gives except after giving reasonable notice
869and opportunity for a hearing to the unit owner and, if
870applicable, its occupant, licensee, or invitee. The hearing must
871be held before a committee of other unit owners who are neither
872board members nor persons residing in a board member's
873household. If the committee does not agree with the fine or
874suspension, the fine or suspension may not be levied or imposed.
875The provisions of this subsection do not apply to unoccupied
876units.
877     (4)  The notice and hearing requirements of subsection (3)
878do not apply to the imposition of suspensions or fines against a
879unit owner or a unit's occupant, licensee, or invitee because of
880the failure to pay any amounts due the association. If such a
881fine or suspension is imposed, the association must levy the
882fine or impose a reasonable suspension at a properly noticed
883board meeting, and after the imposition of such fine or
884suspension, the association must notify the unit owner and, if
885applicable, the unit's occupant, licensee, or invitee by mail or
886hand delivery.
887     (5)  If the declaration or bylaws so provide, an
888association may also suspend the voting rights of a member due
889to nonpayment of assessments, fines, or other charges payable to
890the association which are delinquent in excess of 90 days.
891     Section 11.  Subsection (1) of section 718.501, Florida
892Statutes, is amended to read:
893     718.501  Authority, responsibility, and duties of Division
894of Florida Condominiums, Timeshares, and Mobile Homes.-
895     (1)  The Division of Florida Condominiums, Timeshares, and
896Mobile Homes of the Department of Business and Professional
897Regulation, referred to as the "division" in this part, has the
898power to enforce and ensure compliance with the provisions of
899this chapter and rules relating to the development,
900construction, sale, lease, ownership, operation, and management
901of residential condominium units. In performing its duties, the
902division has complete jurisdiction to investigate complaints and
903enforce compliance with the provisions of this chapter with
904respect to associations that are still under developer control
905and complaints against developers involving improper turnover or
906failure to turnover, pursuant to s. 718.301. However, after
907turnover has occurred, the division shall only have jurisdiction
908to investigate complaints related to financial issues, failure
909to maintain common elements, elections, and unit owner access to
910association records pursuant to s. 718.111(12).
911     (a)1.  The division may make necessary public or private
912investigations within or outside this state to determine whether
913any person has violated this chapter or any rule or order
914hereunder, to aid in the enforcement of this chapter, or to aid
915in the adoption of rules or forms hereunder.
916     2.  The division may submit any official written report,
917worksheet, or other related paper, or a duly certified copy
918thereof, compiled, prepared, drafted, or otherwise made by and
919duly authenticated by a financial examiner or analyst to be
920admitted as competent evidence in any hearing in which the
921financial examiner or analyst is available for cross-examination
922and attests under oath that such documents were prepared as a
923result of an examination or inspection conducted pursuant to
924this chapter.
925     (b)  The division may require or permit any person to file
926a statement in writing, under oath or otherwise, as the division
927determines, as to the facts and circumstances concerning a
928matter to be investigated.
929     (c)  For the purpose of any investigation under this
930chapter, the division director or any officer or employee
931designated by the division director may administer oaths or
932affirmations, subpoena witnesses and compel their attendance,
933take evidence, and require the production of any matter which is
934relevant to the investigation, including the existence,
935description, nature, custody, condition, and location of any
936books, documents, or other tangible things and the identity and
937location of persons having knowledge of relevant facts or any
938other matter reasonably calculated to lead to the discovery of
939material evidence. Upon the failure by a person to obey a
940subpoena or to answer questions propounded by the investigating
941officer and upon reasonable notice to all persons affected
942thereby, the division may apply to the circuit court for an
943order compelling compliance.
944     (d)  Notwithstanding any remedies available to unit owners
945and associations, if the division has reasonable cause to
946believe that a violation of any provision of this chapter or
947related rule has occurred, the division may institute
948enforcement proceedings in its own name against any developer,
949association, officer, or member of the board of administration,
950or its assignees or agents, as follows:
951     1.  The division may permit a person whose conduct or
952actions may be under investigation to waive formal proceedings
953and enter into a consent proceeding whereby orders, rules, or
954letters of censure or warning, whether formal or informal, may
955be entered against the person.
956     2.  The division may issue an order requiring the
957developer, association, developer-designated officer, or
958developer-designated member of the board of administration,
959developer-designated assignees or agents, community association
960manager, or community association management firm to cease and
961desist from the unlawful practice and take such affirmative
962action as in the judgment of the division will carry out the
963purposes of this chapter. If the division finds that a
964developer, association, officer, or member of the board of
965administration, or its assignees or agents, is violating or is
966about to violate any provision of this chapter, any rule adopted
967or order issued by the division, or any written agreement
968entered into with the division, and presents an immediate danger
969to the public requiring an immediate final order, it may issue
970an emergency cease and desist order reciting with particularity
971the facts underlying such findings. The emergency cease and
972desist order is effective for 90 days. If the division begins
973nonemergency cease and desist proceedings, the emergency cease
974and desist order remains effective until the conclusion of the
975proceedings under ss. 120.569 and 120.57.
976     3.  If a developer fails to pay any restitution determined
977by the division to be owed, plus any accrued interest at the
978highest rate permitted by law, within 30 days after expiration
979of any appellate time period of a final order requiring payment
980of restitution or the conclusion of any appeal thereof,
981whichever is later, the division shall bring an action in
982circuit or county court on behalf of any association, class of
983unit owners, lessees, or purchasers for restitution, declaratory
984relief, injunctive relief, or any other available remedy. The
985division may also temporarily revoke its acceptance of the
986filing for the developer to which the restitution relates until
987payment of restitution is made.
988     4.  The division may petition the court for the appointment
989of a receiver or conservator. If appointed, the receiver or
990conservator may take action to implement the court order to
991ensure the performance of the order and to remedy any breach
992thereof. In addition to all other means provided by law for the
993enforcement of an injunction or temporary restraining order, the
994circuit court may impound or sequester the property of a party
995defendant, including books, papers, documents, and related
996records, and allow the examination and use of the property by
997the division and a court-appointed receiver or conservator.
998     5.  The division may apply to the circuit court for an
999order of restitution whereby the defendant in an action brought
1000pursuant to subparagraph 4. shall be ordered to make restitution
1001of those sums shown by the division to have been obtained by the
1002defendant in violation of this chapter. Such restitution shall,
1003at the option of the court, be payable to the conservator or
1004receiver appointed pursuant to subparagraph 4. or directly to
1005the persons whose funds or assets were obtained in violation of
1006this chapter.
1007     6.  The division may impose a civil penalty against a
1008developer or association, or its assignee or agent, for any
1009violation of this chapter or a rule adopted under this chapter.
1010The division may impose a civil penalty individually against any
1011officer or board member who willfully and knowingly violates a
1012provision of this chapter, adopted rule, or a final order of the
1013division; may order the removal of such individual as an officer
1014or from the board of administration or as an officer of the
1015association; and may prohibit such individual from serving as an
1016officer or on the board of a community association for a period
1017of time. The term "willfully and knowingly" means that the
1018division informed the officer or board member that his or her
1019action or intended action violates this chapter, a rule adopted
1020under this chapter, or a final order of the division and that
1021the officer or board member refused to comply with the
1022requirements of this chapter, a rule adopted under this chapter,
1023or a final order of the division. The division, prior to
1024initiating formal agency action under chapter 120, shall afford
1025the officer or board member an opportunity to voluntarily comply
1026with this chapter, a rule adopted under this chapter, or a final
1027order of the division. An officer or board member who complies
1028within 10 days is not subject to a civil penalty. A penalty may
1029be imposed on the basis of each day of continuing violation, but
1030in no event shall the penalty for any offense exceed $5,000. By
1031January 1, 1998, the division shall adopt, by rule, penalty
1032guidelines applicable to possible violations or to categories of
1033violations of this chapter or rules adopted by the division. The
1034guidelines must specify a meaningful range of civil penalties
1035for each such violation of the statute and rules and must be
1036based upon the harm caused by the violation, the repetition of
1037the violation, and upon such other factors deemed relevant by
1038the division. For example, the division may consider whether the
1039violations were committed by a developer or owner-controlled
1040association, the size of the association, and other factors. The
1041guidelines must designate the possible mitigating or aggravating
1042circumstances that justify a departure from the range of
1043penalties provided by the rules. It is the legislative intent
1044that minor violations be distinguished from those which endanger
1045the health, safety, or welfare of the condominium residents or
1046other persons and that such guidelines provide reasonable and
1047meaningful notice to the public of likely penalties that may be
1048imposed for proscribed conduct. This subsection does not limit
1049the ability of the division to informally dispose of
1050administrative actions or complaints by stipulation, agreed
1051settlement, or consent order. All amounts collected shall be
1052deposited with the Chief Financial Officer to the credit of the
1053Division of Florida Condominiums, Timeshares, and Mobile Homes
1054Trust Fund. If a developer fails to pay the civil penalty and
1055the amount deemed to be owed to the association, the division
1056shall issue an order directing that such developer cease and
1057desist from further operation until such time as the civil
1058penalty is paid or may pursue enforcement of the penalty in a
1059court of competent jurisdiction. If an association fails to pay
1060the civil penalty, the division shall pursue enforcement in a
1061court of competent jurisdiction, and the order imposing the
1062civil penalty or the cease and desist order will not become
1063effective until 20 days after the date of such order. Any action
1064commenced by the division shall be brought in the county in
1065which the division has its executive offices or in the county
1066where the violation occurred.
1067     7.  If a unit owner presents the division with proof that
1068the unit owner has requested access to official records in
1069writing by certified mail, and that after 10 days the unit owner
1070again made the same request for access to official records in
1071writing by certified mail, and that more than 10 days has
1072elapsed since the second request and the association has still
1073failed or refused to provide access to official records as
1074required by this chapter, the division shall issue a subpoena
1075requiring production of the requested records where the records
1076are kept pursuant to s. 718.112.
1077     8.  In addition to subparagraph 6., the division may seek
1078the imposition of a civil penalty through the circuit court for
1079any violation for which the division may issue a notice to show
1080cause under paragraph (r). The civil penalty shall be at least
1081$500 but no more than $5,000 for each violation. The court may
1082also award to the prevailing party court costs and reasonable
1083attorney's fees and, if the division prevails, may also award
1084reasonable costs of investigation.
1085     9.  Notwithstanding subparagraph 6., when the division
1086finds that an officer or director has intentionally falsified
1087association records with the intent to conceal material facts
1088from the division, the board, or unit owners, the division shall
1089prohibit the officer or director from acting as an officer or
1090director of any condominium, cooperative, or homeowners'
1091association for at least 1 year.
1092     10.  When the division finds that any person has derived an
1093improper personal benefit from a condominium association, the
1094division shall order the person to pay restitution to the
1095association and shall order the person to pay to the division
1096the costs of investigation and prosecution.
1097     (e)  The division may prepare and disseminate a prospectus
1098and other information to assist prospective owners, purchasers,
1099lessees, and developers of residential condominiums in assessing
1100the rights, privileges, and duties pertaining thereto.
1101     (f)  The division has authority to adopt rules pursuant to
1102ss. 120.536(1) and 120.54 to implement and enforce the
1103provisions of this chapter.
1104     (g)  The division shall establish procedures for providing
1105notice to an association and the developer during the period
1106where the developer controls the association when the division
1107is considering the issuance of a declaratory statement with
1108respect to the declaration of condominium or any related
1109document governing in such condominium community.
1110     (h)  The division shall furnish each association which pays
1111the fees required by paragraph (2)(a) a copy of this act,
1112subsequent changes to this act on an annual basis, an amended
1113version of this act as it becomes available from the Secretary
1114of State's office on a biennial basis, and the rules adopted
1115thereto on an annual basis.
1116     (i)  The division shall annually provide each association
1117with a summary of declaratory statements and formal legal
1118opinions relating to the operations of condominiums which were
1119rendered by the division during the previous year.
1120     (j)  The division shall provide training and educational
1121programs for condominium association board members and unit
1122owners. The training may, in the division's discretion, include
1123web-based electronic media, and live training and seminars in
1124various locations throughout the state. The division shall have
1125the authority to review and approve education and training
1126programs for board members and unit owners offered by providers
1127and shall maintain a current list of approved programs and
1128providers and shall make such list available to board members
1129and unit owners in a reasonable and cost-effective manner.
1130     (k)  The division shall maintain a toll-free telephone
1131number accessible to condominium unit owners.
1132     (l)  The division shall develop a program to certify both
1133volunteer and paid mediators to provide mediation of condominium
1134disputes. The division shall provide, upon request, a list of
1135such mediators to any association, unit owner, or other
1136participant in arbitration proceedings under s. 718.1255
1137requesting a copy of the list. The division shall include on the
1138list of volunteer mediators only the names of persons who have
1139received at least 20 hours of training in mediation techniques
1140or who have mediated at least 20 disputes. In order to become
1141initially certified by the division, paid mediators must be
1142certified by the Supreme Court to mediate court cases in county
1143or circuit courts. However, the division may adopt, by rule,
1144additional factors for the certification of paid mediators,
1145which factors must be related to experience, education, or
1146background. Any person initially certified as a paid mediator by
1147the division must, in order to continue to be certified, comply
1148with the factors or requirements imposed by rules adopted by the
1149division.
1150     (m)  When a complaint is made, the division shall conduct
1151its inquiry with due regard to the interests of the affected
1152parties. Within 30 days after receipt of a complaint, the
1153division shall acknowledge the complaint in writing and notify
1154the complainant whether the complaint is within the jurisdiction
1155of the division and whether additional information is needed by
1156the division from the complainant. The division shall conduct
1157its investigation and shall, within 90 days after receipt of the
1158original complaint or of timely requested additional
1159information, take action upon the complaint. However, the
1160failure to complete the investigation within 90 days does not
1161prevent the division from continuing the investigation,
1162accepting or considering evidence obtained or received after 90
1163days, or taking administrative action if reasonable cause exists
1164to believe that a violation of this chapter or a rule of the
1165division has occurred. If an investigation is not completed
1166within the time limits established in this paragraph, the
1167division shall, on a monthly basis, notify the complainant in
1168writing of the status of the investigation. When reporting its
1169action to the complainant, the division shall inform the
1170complainant of any right to a hearing pursuant to ss. 120.569
1171and 120.57.
1172     (n)  Condominium association directors, officers, and
1173employees; condominium developers; community association
1174managers; and community association management firms have an
1175ongoing duty to reasonably cooperate with the division in any
1176investigation pursuant to this section. The division shall refer
1177to local law enforcement authorities any person whom the
1178division believes has altered, destroyed, concealed, or removed
1179any record, document, or thing required to be kept or maintained
1180by this chapter with the purpose to impair its verity or
1181availability in the department's investigation.
1182     (o)  The division may:
1183     1.  Contract with agencies in this state or other
1184jurisdictions to perform investigative functions; or
1185     2.  Accept grants-in-aid from any source.
1186     (p)  The division shall cooperate with similar agencies in
1187other jurisdictions to establish uniform filing procedures and
1188forms, public offering statements, advertising standards, and
1189rules and common administrative practices.
1190     (q)  The division shall consider notice to a developer to
1191be complete when it is delivered to the developer's address
1192currently on file with the division.
1193     (r)  In addition to its enforcement authority, the division
1194may issue a notice to show cause, which shall provide for a
1195hearing, upon written request, in accordance with chapter 120.
1196     (s)  The division shall submit to the Governor, the
1197President of the Senate, the Speaker of the House of
1198Representatives, and the chairs of the legislative
1199appropriations committees an annual report that includes, but
1200need not be limited to, the number of training programs provided
1201for condominium association board members and unit owners, the
1202number of complaints received by type, the number and percent of
1203complaints acknowledged in writing within 30 days and the number
1204and percent of investigations acted upon within 90 days in
1205accordance with paragraph (m), and the number of investigations
1206exceeding the 90-day requirement. The annual report shall also
1207include an evaluation of the division's core business processes
1208and make recommendations for improvements, including statutory
1209changes. The report shall be submitted by September 30 following
1210the end of the fiscal year.
1211     Section 12.  Subsection (4) of section 718.5012, Florida
1212Statutes, is amended to read:
1213     718.5012  Ombudsman; powers and duties.-The ombudsman shall
1214have the powers that are necessary to carry out the duties of
1215his or her office, including the following specific powers:
1216     (4)  To act as liaison between the division, unit owners,
1217boards of directors, board members, community association
1218managers, and other affected parties. The ombudsman shall
1219develop policies and procedures to assist unit owners, boards of
1220directors, board members, community association managers, and
1221other affected parties to understand their rights and
1222responsibilities as set forth in this chapter and the
1223condominium documents governing their respective association.
1224The ombudsman shall coordinate and assist in the preparation and
1225adoption of educational and reference material, and shall
1226endeavor to coordinate with private or volunteer providers of
1227these services, so that the availability of these resources is
1228made known to the largest possible audience. In conjunction with
1229the division, included in the preparation and adoption of
1230educational and reference materials shall be the publishing and
1231updating of a "Florida Condominium Handbook" to facilitate
1232understanding of this chapter, the contents of which are stated
1233in a clear, conspicuous, and easily understandable manner. The
1234handbook shall be made publicly available on the ombudsman's
1235Internet website.
1236     Section 13.  Part VII of chapter 718, Florida Statutes,
1237consisting of sections 718.701, 718.702, 718.703, 718.704,
1238718.705, 718.706, 718.707, and 718.708, is created to read:
1239
     PART VII
1240
     DISTRESSED CONDOMINIUM RELIEF
1241     718.701  Short title.-This part may be cited as the
1242"Distressed Condominium Relief Act."
1243     718.702  Legislative intent.-
1244     (1)  The Legislature acknowledges the massive downturn in
1245the condominium market which has transpired throughout the state
1246and the impact of such downturn on developers, lenders, unit
1247owners, and condominium associations. Numerous condominium
1248projects have either failed or are in the process of failing,
1249whereby the condominium has a small percentage of third-party
1250unit owners as compared to the unsold inventory of units. As a
1251result of the inability to find purchasers for this inventory of
1252units, which results in part from the devaluing of real estate
1253in this state, developers are unable to satisfy the requirements
1254of their lenders, leading to defaults on mortgages.
1255Consequently, lenders are faced with the task of finding a
1256solution to the problem in order to be paid for their
1257investments.
1258     (2)  The Legislature recognizes that all of the factors
1259listed in this section lead to condominiums becoming distressed,
1260resulting in detriment to the unit owners and the condominium
1261association on account of the resulting shortage of assessment
1262moneys available to support the financial requirements for
1263proper maintenance of the condominium. Such shortage and the
1264resulting lack of proper maintenance further erode property
1265values. The Legislature finds that individuals and entities
1266within Florida and in other states have expressed interest in
1267purchasing unsold inventory in one or more condominium projects,
1268but are reticent to do so because of accompanying liabilities
1269inherited from the original developer, which are by definition
1270imputed to the successor purchaser, including a foreclosing
1271mortgagee. This results in the potential purchaser having
1272unknown and unquantifiable risks, and potential successor
1273purchasers are unwilling to accept such risks. The result is
1274that condominium projects stagnate, leaving all parties involved
1275at an impasse without the ability to find a solution.
1276     (3)  The Legislature finds and declares that it is the
1277public policy of this state to protect the interests of
1278developers, lenders, unit owners, and condominium associations
1279with regard to distressed condominiums, and that there is a need
1280for relief from certain provisions of the Florida Condominium
1281Act geared toward enabling economic opportunities within these
1282condominiums for successor purchasers, including foreclosing
1283mortgagees. Such relief would benefit existing unit owners and
1284condominium associations. The Legislature further finds and
1285declares that this situation cannot be open-ended without
1286potentially prejudicing the rights of unit owners and
1287condominium associations, and thereby declares that the
1288provisions of this part shall be used by purchasers of
1289condominium inventory for a specific and defined period.
1290     718.703  Definitions.-As used in this part, the term:
1291     (1)  "Bulk assignee" means a person who:
1292     (a)  Acquires more than seven condominium parcels as set
1293forth in s. 718.707; and
1294     (b)  Receives an assignment of some or all of the rights of
1295the developer as are set forth in the declaration of condominium
1296or in this chapter by a written instrument recorded as an
1297exhibit to the deed or as a separate instrument in the public
1298records of the county in which the condominium is located.
1299     (2)  "Bulk buyer" means a person who acquires more than
1300seven condominium parcels as set forth in s. 718.707 but who
1301does not receive an assignment of any developer rights other
1302than the right to conduct sales, leasing, and marketing
1303activities within the condominium.
1304     718.704  Assignment of developer rights to and assumption
1305of developer rights by bulk assignee; bulk buyer.-
1306     (1)  A bulk assignee shall be deemed to have assumed and is
1307liable for all duties and responsibilities of the developer
1308under the declaration and this chapter, except:
1309     (a)  Warranties of the developer under s. 718.203(1) or s.
1310718.618, except for design, construction, development, or repair
1311work performed by or on behalf of such bulk assignee.
1312     (b)  The obligation to:
1313     1.  Fund converter reserves under s. 718.618 for a unit
1314which was not acquired by the bulk assignee; or
1315     2.  Provide converter warranties on any portion of the
1316condominium property except as may be expressly provided by the
1317bulk assignee in the contract for purchase and sale executed
1318with a purchaser and pertaining to any design, construction,
1319development, or repair work performed by or on behalf of the
1320bulk assignee.
1321     (c)  The requirement to provide the association with a
1322cumulative audit of the association's finances from the date of
1323formation of the condominium association as required by s.
1324718.301. However, the bulk assignee shall provide an audit for
1325the period for which the bulk assignee elects a majority of the
1326members of the board of administration.
1327     (d)  Any liability arising out of or in connection with
1328actions taken by the board of administration or the developer-
1329appointed directors before the bulk assignee elects a majority
1330of the members of the board of administration.
1331     (e)  Any liability for or arising out of the developer's
1332failure to fund previous assessments or to resolve budgetary
1333deficits in relation to a developer's right to guarantee
1334assessments, except as otherwise provided in subsection (2).
1335
1336Further, the bulk assignee is responsible for delivering
1337documents and materials in accordance with s. 718.705(3). A bulk
1338assignee may expressly assume some or all of the obligations of
1339the developer described in paragraphs (a)-(e).
1340     (2)  A bulk assignee receiving the assignment of the rights
1341of the developer to guarantee the level of assessments and fund
1342budgetary deficits pursuant to s. 718.116 shall be deemed to
1343have assumed and is liable for all obligations of the developer
1344with respect to such guarantee, including any applicable funding
1345of reserves to the extent required by law, for as long as the
1346guarantee remains in effect. A bulk assignee not receiving an
1347assignment of the right of the developer to guarantee the level
1348of assessments and fund budgetary deficits pursuant to s.
1349718.116 or a bulk buyer is not deemed to have assumed and is not
1350liable for the obligations of the developer with respect to such
1351guarantee, but is responsible for payment of assessments in the
1352same manner as all other owners of condominium parcels.
1353     (3)  A bulk buyer is liable for the duties and
1354responsibilities of the developer under the declaration and this
1355chapter only to the extent provided in this part, together with
1356any other duties or responsibilities of the developer expressly
1357assumed in writing by the bulk buyer.
1358     (4)  An acquirer of condominium parcels is not considered a
1359bulk assignee or a bulk buyer if the transfer to such acquirer
1360was made with the intent to hinder, delay, or defraud any
1361purchaser, unit owner, or the association, or if the acquirer is
1362a person who would constitute an insider under s. 726.102(7).
1363     (5)  An assignment of developer rights to a bulk assignee
1364may be made by the developer, a previous bulk assignee, or a
1365court of competent jurisdiction acting on behalf of the
1366developer or the previous bulk assignee. At any particular time,
1367there may be no more than one bulk assignee within a
1368condominium, but there may be more than one bulk buyer. If more
1369than one acquirer of condominium parcels receives an assignment
1370of developer rights from the same person, the bulk assignee is
1371the acquirer whose instrument of assignment is recorded first in
1372applicable public records.
1373     718.705  Board of administration; transfer of control.-
1374     (1)  For purposes of determining the timing for transfer of
1375control of the board of administration of the association to
1376unit owners other than the developer under s. 718.301(1)(a) or
1377(b), if a bulk assignee is entitled to elect a majority of the
1378members of the board, a condominium parcel acquired by the bulk
1379assignee shall not be deemed to be conveyed to a purchaser, or
1380to be owned by an owner other than the developer, until such
1381condominium parcel is conveyed to an owner who is not a bulk
1382assignee.
1383     (2)  Unless control of the board of administration of the
1384association has already been relinquished pursuant to s.
1385718.301(1), the bulk assignee is obligated to relinquish control
1386of the association in accordance with s. 718.301 and this part.
1387     (3)  When a bulk assignee relinquishes control of the board
1388of administration as set forth in s. 718.301, the bulk assignee
1389shall deliver all of those items required by s. 718.301(4).
1390However, the bulk assignee is not required to deliver items and
1391documents not in the possession of the bulk assignee during the
1392period during which the bulk assignee was the owner of
1393condominium parcels. In conjunction with the acquisition of
1394condominium parcels, a bulk assignee shall undertake a good
1395faith effort to obtain the documents and materials required to
1396be provided to the association pursuant to s. 718.301(4). To the
1397extent the bulk assignee is not able to obtain all of such
1398documents and materials, the bulk assignee shall certify in
1399writing to the association the names or descriptions of the
1400documents and materials that were not obtainable by the bulk
1401assignee. Delivery of the certificate relieves the bulk assignee
1402of responsibility for the delivery of the documents and
1403materials referenced in the certificate as otherwise required
1404under ss. 718.112 and 718.301 and this part. The responsibility
1405of the bulk assignee for the audit required by s. 718.301(4)
1406shall commence as of the date on which the bulk assignee elected
1407a majority of the members of the board of administration.
1408     (4)  If a conflict arises between the provisions or
1409application of this section and s. 718.301, this section shall
1410prevail.
1411     (5)  Failure of a bulk assignee or bulk buyer to comply
1412with all the requirements contained in this part shall result in
1413the loss of any and all protections or exemptions provided under
1414this part.
1415     718.706  Specific provisions pertaining to offering of
1416units by a bulk assignee or bulk buyer.-
1417     (1)  Before offering any units for sale or for lease for a
1418term exceeding 5 years, a bulk assignee or bulk buyer must file
1419the following documents with the division and provide such
1420documents to a prospective purchaser:
1421     (a)  An updated prospectus or offering circular, or a
1422supplement to the prospectus or offering circular, filed by the
1423creating developer prepared in accordance with s. 718.504, which
1424shall include the form of contract for purchase and sale in
1425compliance with s. 718.503(2).
1426     (b)  An updated Frequently Asked Questions and Answers
1427sheet.
1428     (c)  The executed escrow agreement if required under s.
1429718.202.
1430     (d)  The financial information required by s. 718.111(13).
1431However, if a financial information report does not exist for
1432the fiscal year before acquisition of title by the bulk assignee
1433or bulk buyer, or accounting records cannot be obtained in good
1434faith by the bulk assignee or bulk buyer which would permit
1435preparation of the required financial information report, the
1436bulk assignee or bulk buyer is excused from the requirement of
1437this paragraph. However, the bulk assignee or bulk buyer must
1438include in the purchase contract the following statement in
1439conspicuous type:
1440
1441     THE FINANCIAL INFORMATION REPORT REQUIRED UNDER
1442SECTION 718.111(13), FLORIDA STATUTES, FOR THE
1443IMMEDIATELY PRECEDING FISCAL YEAR OF THE ASSOCIATION
1444IS NOT AVAILABLE OR CANNOT BE CREATED BY THE SELLER AS
1445A RESULT OF INSUFFICIENT ACCOUNTING RECORDS OF THE
1446ASSOCIATION.
1447
1448     (2)  Before offering any units for sale or for lease for a
1449term exceeding 5 years, a bulk assignee must file with the
1450division and provide to a prospective purchaser a disclosure
1451statement that must include, but is not limited to:
1452     (a)  A description to the purchaser of any rights of the
1453developer which have been assigned to the bulk assignee.
1454     (b)  The following statement in conspicuous type:
1455
1456     SELLER IS NOT OBLIGATED FOR ANY WARRANTIES OF THE
1457DEVELOPER UNDER SECTION 718.203(1) OR SECTION 718.618,
1458FLORIDA STATUTES, AS APPLICABLE, EXCEPT FOR DESIGN,
1459CONSTRUCTION, DEVELOPMENT, OR REPAIR WORK PERFORMED BY
1460OR ON BEHALF OF SELLER.
1461
1462     (c)  If the condominium is a conversion subject to part VI,
1463the following statement in conspicuous type:
1464
1465     SELLER HAS NO OBLIGATION TO FUND CONVERTER
1466RESERVES OR TO PROVIDE CONVERTER WARRANTIES UNDER
1467SECTION 718.618, FLORIDA STATUTES, ON ANY PORTION OF
1468THE CONDOMINIUM PROPERTY EXCEPT AS MAY BE EXPRESSLY
1469REQUIRED OF THE SELLER IN THE CONTRACT FOR PURCHASE
1470AND SALE EXECUTED BY THE SELLER AND THE PREVIOUS
1471DEVELOPER AND PERTAINING TO ANY DESIGN, CONSTRUCTION,
1472DEVELOPMENT, OR REPAIR WORK PERFORMED BY OR ON BEHALF
1473OF THE SELLER.
1474
1475     (3)  In addition to the requirements set forth in
1476subsection (1), a bulk assignee or bulk buyer must comply with
1477the nondeveloper disclosure requirements set forth in s.
1478718.503(2) before offering any units for sale or for lease for a
1479term exceeding 5 years.
1480     (4)  A bulk assignee, while in control of the board of
1481administration of the association, may not authorize, on behalf
1482of the association:
1483     (a)  The waiver of reserves or the reduction of funding of
1484the reserves in accordance with s. 718.112(2)(f)2., unless
1485approved by a majority of the voting interests not controlled by
1486the developer, bulk assignee, or bulk buyer; or
1487     (b)  The use of reserve expenditures for other purposes in
1488accordance with s. 718.112(2)(f)3., unless approved by a
1489majority of the voting interests not controlled by the
1490developer, bulk assignee, or bulk buyer.
1491     (5)  A bulk assignee, while in control of the board of
1492administration of the association, must comply with the
1493requirements imposed upon developers to transfer control of the
1494association to the unit owners in accordance with s. 718.301.
1495     (6)  A bulk assignee or bulk buyer must comply with all the
1496requirements of s. 718.302 regarding any contracts entered into
1497by the association during the period the bulk assignee or bulk
1498buyer maintains control of the board of administration. Unit
1499owners shall be afforded all the protections contained in s.
1500718.302 regarding agreements entered into by the association
1501before unit owners other than the developer, bulk assignee, or
1502bulk buyer elected a majority of the board of administration.
1503     (7)  A bulk buyer must comply with the requirements
1504contained in the declaration regarding any transfer of a unit,
1505including sales, leases, and subleases. A bulk buyer is not
1506entitled to any exemptions afforded a developer or successor
1507developer under this chapter regarding any transfer of a unit,
1508including sales, leases, or subleases.
1509     718.707  Time limitation for classification as bulk
1510assignee or bulk buyer.-A person acquiring condominium parcels
1511may not be classified as a bulk assignee or bulk buyer unless
1512the condominium parcels were acquired before July 1, 2012. The
1513date of such acquisition shall be determined by the date of
1514recording of a deed or other instrument of conveyance for such
1515parcels in the public records of the county in which the
1516condominium is located or by the date of issuance of a
1517certificate of title in a foreclosure proceeding with respect to
1518such condominium parcels.
1519     718.708  Liability of developers and others.-An assignment
1520of developer rights to a bulk assignee or bulk buyer does not
1521release the developer from any liabilities under the declaration
1522or this chapter. This part does not limit the liability of the
1523developer for claims brought by unit owners, bulk assignees, or
1524bulk buyers for violations of this chapter by the developer,
1525unless specifically excluded in this part. Nothing contained
1526within this part waives, releases, compromises, or limits the
1527liability of contractors, subcontractors, materialmen,
1528manufacturers, architects, engineers, or any participant in the
1529design or construction of a condominium for any claim brought by
1530an association, unit owners, bulk assignees, or bulk buyers
1531arising from the design of the condominium, construction
1532defects, misrepresentations associated with condominium
1533property, or violations of this chapter, unless specifically
1534excluded in this part.
1535     Section 14.  Subsection (2) of section 720.302, Florida
1536Statutes, is amended to read:
1537     720.302  Purposes, scope, and application.-
1538     (2)  The Legislature recognizes that it is not in the best
1539interest of homeowners' associations or the individual
1540association members thereof to create or impose a bureau or
1541other agency of state government to regulate the affairs of
1542homeowners' associations. However, in accordance with part IV of
1543this chapter s. 720.311, the Legislature finds that homeowners'
1544associations and their individual members will benefit from an
1545expedited alternative process for resolution of election and
1546recall disputes and presuit mediation of other disputes
1547involving covenant enforcement in homeowners' associations and
1548deed-restricted communities using the procedures provided in
1549part IV of and authorizes the department to hear, administer,
1550and determine these disputes as more fully set forth in this
1551chapter. Further, the Legislature recognizes that certain
1552contract rights have been created for the benefit of homeowners'
1553associations and members thereof as well as deed-restricted
1554communities before the effective date of this act and that part
1555IV of this chapter is ss. 720.301-720.407 are not intended to
1556impair such contract rights, including, but not limited to, the
1557rights of the developer to complete the community as initially
1558contemplated.
1559     Section 15.  Paragraph (b) of subsection (2), paragraph (g)
1560of subsection(4), paragraphs (a) and (c) of subsection (5),
1561paragraphs (b), (c), (d), (f), and (g) of subsection (6), and
1562paragraphs (c) and (d) of subsection (10) of section 720.303,
1563Florida Statutes, are amended, and subsections (12), (13), and
1564(14) are added to that section, to read:
1565     720.303  Association powers and duties; meetings of board;
1566official records; budgets; financial reporting; association
1567funds; recalls; prohibited compensation; borrowing; transfer
1568fees.-
1569     (2)  BOARD MEETINGS.-
1570     (b)  Members have the right to attend all meetings of the
1571board and to speak on any matter placed on the agenda by
1572petition of the voting interests for at least 3 minutes. The
1573association may adopt written reasonable rules expanding the
1574right of members to speak and governing the frequency, duration,
1575and other manner of member statements, which rules must be
1576consistent with this paragraph and may include a sign-up sheet
1577for members wishing to speak. Notwithstanding any other law, the
1578requirement that board meetings and committee meetings be open
1579to the members is inapplicable to meetings between the board or
1580a committee and the association's attorney to discuss proposed
1581or pending litigation, or with respect to meetings of the board
1582held for the purpose of discussing personnel matters are not
1583required to be open to the members.
1584     (4)  OFFICIAL RECORDS.-The association shall maintain each
1585of the following items, when applicable, which constitute the
1586official records of the association:
1587     (g)  A current roster of all members and their mailing
1588addresses and parcel identifications. The association shall also
1589maintain the electronic mailing addresses and the numbers
1590designated by members for receiving notice sent by electronic
1591transmission of those members consenting to receive notice by
1592electronic transmission. The electronic mailing addresses and
1593numbers provided by parcel unit owners to receive notice by
1594electronic transmission shall be removed from association
1595records when consent to receive notice by electronic
1596transmission is revoked. However, the association is not liable
1597for an erroneous disclosure of the electronic mail address or
1598the number for receiving electronic transmission of notices.
1599     (5)  INSPECTION AND COPYING OF RECORDS.-The official
1600records shall be maintained within the state and must be open to
1601inspection and available for photocopying by members or their
1602authorized agents at reasonable times and places within 10
1603business days after receipt of a written request for access.
1604This subsection may be complied with by having a copy of the
1605official records available for inspection or copying in the
1606community. If the association has a photocopy machine available
1607where the records are maintained, it must provide parcel owners
1608with copies on request during the inspection if the entire
1609request is limited to no more than 25 pages.
1610     (a)  The failure of an association to provide access to the
1611records within 10 business days after receipt of a written
1612request submitted by certified mail, return receipt requested,
1613creates a rebuttable presumption that the association willfully
1614failed to comply with this subsection.
1615     (c)  The association may adopt reasonable written rules
1616governing the frequency, time, location, notice, records to be
1617inspected, and manner of inspections, but may not require impose
1618a requirement that a parcel owner to demonstrate any proper
1619purpose for the inspection, state any reason for the inspection,
1620or limit a parcel owner's right to inspect records to less than
1621one 8-hour business day per month. The association may impose
1622fees to cover the costs of providing copies of the official
1623records, including, without limitation, the costs of copying.
1624The association may charge up to 50 cents per page for copies
1625made on the association's photocopier. If the association does
1626not have a photocopy machine available where the records are
1627kept, or if the records requested to be copied exceed 25 pages
1628in length, the association may have copies made by an outside
1629vendor or association management company personnel and may
1630charge the actual cost of copying, including any reasonable
1631costs involving personnel fees and charges at an hourly rate for
1632employee time to cover administrative costs to the association.
1633The association shall maintain an adequate number of copies of
1634the recorded governing documents, to ensure their availability
1635to members and prospective members. Notwithstanding the
1636provisions of this paragraph, the following records are shall
1637not be accessible to members or parcel owners:
1638     1.  Any record protected by the lawyer-client privilege as
1639described in s. 90.502 and any record protected by the work-
1640product privilege, including, but not limited to, any record
1641prepared by an association attorney or prepared at the
1642attorney's express direction which reflects a mental impression,
1643conclusion, litigation strategy, or legal theory of the attorney
1644or the association and which was prepared exclusively for civil
1645or criminal litigation or for adversarial administrative
1646proceedings or which was prepared in anticipation of imminent
1647civil or criminal litigation or imminent adversarial
1648administrative proceedings until the conclusion of the
1649litigation or adversarial administrative proceedings.
1650     2.  Information obtained by an association in connection
1651with the approval of the lease, sale, or other transfer of a
1652parcel.
1653     3.  Disciplinary, health, insurance, and personnel records
1654of the association's employees.
1655     4.  Medical records of parcel owners or community
1656residents.
1657     (6)  BUDGETS.-
1658     (b)  In addition to annual operating expenses, the budget
1659may include reserve accounts for capital expenditures and
1660deferred maintenance for which the association is responsible.
1661If reserve accounts are not established pursuant to paragraph
1662(d), funding of such reserves shall be limited to the extent
1663that the governing documents do not limit increases in
1664assessments, including reserves. If the budget of the
1665association includes reserve accounts established pursuant to
1666paragraph (d), such reserves shall be determined, maintained,
1667and waived in the manner provided in this subsection. Once an
1668association provides for reserve accounts pursuant to paragraph
1669(d) in the budget, the association shall thereafter determine,
1670maintain, and waive reserves in compliance with this subsection.
1671This section does not preclude the termination of a reserve
1672account established pursuant to this paragraph upon approval of
1673a majority of the voting interests of the association. Upon such
1674approval, the terminating reserve account shall be removed from
1675the budget.
1676     (c)1.  If the budget of the association does not provide
1677for reserve accounts pursuant to paragraph (d) governed by this
1678subsection and the association is responsible for the repair and
1679maintenance of capital improvements that may result in a special
1680assessment if reserves are not provided, each financial report
1681for the preceding fiscal year required under by subsection (7)
1682shall contain the following statement in conspicuous type:
1683
1684THE BUDGET OF THE ASSOCIATION DOES NOT PROVIDE FOR
1685RESERVE ACCOUNTS FOR CAPITAL EXPENDITURES AND DEFERRED
1686MAINTENANCE THAT MAY RESULT IN SPECIAL ASSESSMENTS.
1687OWNERS MAY ELECT TO PROVIDE FOR RESERVE ACCOUNTS
1688PURSUANT TO THE PROVISIONS OF SECTION 720.303(6),
1689FLORIDA STATUTES, UPON OBTAINING THE APPROVAL OF NOT
1690LESS THAN A MAJORITY OF THE TOTAL VOTING INTERESTS OF
1691THE ASSOCIATION BY VOTE OF THE MEMBERS AT A MEETING OR
1692BY WRITTEN CONSENT.
1693
1694     2.  If the budget of the association does provide for
1695funding accounts for deferred expenditures, including, but not
1696limited to, funds for capital expenditures and deferred
1697maintenance, but such accounts are not created or established
1698pursuant to paragraph (d), each financial report for the
1699preceding fiscal year required under subsection (7) must also
1700contain the following statement in conspicuous type:
1701
1702THE BUDGET OF THE ASSOCIATION DOES PROVIDE FOR LIMITED
1703VOLUNTARY DEFERRED EXPENDITURE ACCOUNTS, INCLUDING
1704CAPITAL EXPENDITURES AND DEFERRED MAINTENANCE, SUBJECT
1705TO LIMITS ON FUNDING CONTAINED IN OUR GOVERNING
1706DOCUMENTS. BECAUSE THE OWNERS HAVE NOT ELECTED TO
1707PROVIDE FOR RESERVE ACCOUNTS PURSUANT TO SECTION
1708720.303(6), FLORIDA STATUTES, THESE FUNDS ARE NOT
1709SUBJECT TO THE RESTRICTIONS ON USE OF SUCH FUNDS SET
1710FORTH IN THAT STATUTE, NOR ARE RESERVES CALCULATED IN
1711ACCORDANCE WITH THAT STATUTE.
1712
1713     (d)  An association shall be deemed to have provided for
1714reserve accounts if when reserve accounts have been initially
1715established by the developer or if when the membership of the
1716association affirmatively elects to provide for reserves. If
1717reserve accounts are not initially provided for by the
1718developer, the membership of the association may elect to do so
1719upon the affirmative approval of not less than a majority of the
1720total voting interests of the association. Such approval may be
1721obtained attained by vote of the members at a duly called
1722meeting of the membership or by the upon a written consent of
1723executed by not less than a majority of the total voting
1724interests in the community. The approval action of the
1725membership shall state that reserve accounts shall be provided
1726for in the budget and shall designate the components for which
1727the reserve accounts are to be established. Upon approval by the
1728membership, the board of directors shall include provide for the
1729required reserve accounts for inclusion in the budget in the
1730next fiscal year following the approval and in each year
1731thereafter. Once established as provided in this subsection, the
1732reserve accounts shall be funded or maintained or shall have
1733their funding waived in the manner provided in paragraph (f).
1734     (f)  After one or more Once a reserve account or reserve
1735accounts are established, the membership of the association,
1736upon a majority vote at a meeting at which a quorum is present,
1737may provide for no reserves or less reserves than required by
1738this section. If a meeting of the parcel unit owners has been
1739called to determine whether to waive or reduce the funding of
1740reserves and no such result is achieved or a quorum is not
1741present, the reserves as included in the budget shall go into
1742effect. After the turnover, the developer may vote its voting
1743interest to waive or reduce the funding of reserves. Any vote
1744taken pursuant to this subsection to waive or reduce reserves is
1745shall be applicable only to one budget year.
1746     (g)  Funding formulas for reserves authorized by this
1747section shall be based on either a separate analysis of each of
1748the required assets or a pooled analysis of two or more of the
1749required assets.
1750     1.  If the association maintains separate reserve accounts
1751for each of the required assets, the amount of the contribution
1752to each reserve account is shall be the sum of the following two
1753calculations:
1754     a.  The total amount necessary, if any, to bring a negative
1755component balance to zero.
1756     b.  The total estimated deferred maintenance expense or
1757estimated replacement cost of the reserve component less the
1758estimated balance of the reserve component as of the beginning
1759of the period for which the budget will be in effect. The
1760remainder, if greater than zero, shall be divided by the
1761estimated remaining useful life of the component.
1762
1763The formula may be adjusted each year for changes in estimates
1764and deferred maintenance performed during the year and may
1765include factors such as inflation and earnings on invested
1766funds.
1767     2.  If the association maintains a pooled account of two or
1768more of the required reserve assets, the amount of the
1769contribution to the pooled reserve account as disclosed on the
1770proposed budget may shall not be less than that required to
1771ensure that the balance on hand at the beginning of the period
1772for which the budget will go into effect plus the projected
1773annual cash inflows over the remaining estimated useful life of
1774all of the assets that make up the reserve pool are equal to or
1775greater than the projected annual cash outflows over the
1776remaining estimated useful lives of all of the assets that make
1777up the reserve pool, based on the current reserve analysis. The
1778projected annual cash inflows may include estimated earnings
1779from investment of principal and accounts receivable minus the
1780allowance for doubtful accounts. The reserve funding formula may
1781shall not include any type of balloon payments.
1782     (10)  RECALL OF DIRECTORS.-
1783     (c)1.  If the declaration, articles of incorporation, or
1784bylaws specifically provide, the members may also recall and
1785remove a board director or directors by a vote taken at a
1786meeting. If so provided in the governing documents, a special
1787meeting of the members to recall a director or directors of the
1788board of administration may be called by 10 percent of the
1789voting interests giving notice of the meeting as required for a
1790meeting of members, and the notice shall state the purpose of
1791the meeting. Electronic transmission may not be used as a method
1792of giving notice of a meeting called in whole or in part for
1793this purpose.
1794     2.  The board shall duly notice and hold a board meeting
1795within 5 full business days after the adjournment of the member
1796meeting to recall one or more directors. At the meeting, the
1797board shall certify the recall, in which case such member or
1798members shall be recalled effective immediately and shall turn
1799over to the board within 5 full business days any and all
1800records and property of the association in their possession, or
1801shall proceed as set forth in paragraph subparagraph (d).
1802     (d)  If the board determines not to certify the written
1803agreement or written ballots to recall a director or directors
1804of the board or does not certify the recall by a vote at a
1805meeting, the board shall, within 5 full business days after the
1806meeting, initiate file with the department a petition for
1807binding arbitration pursuant to the applicable procedures in s.
1808720.507 ss. 718.112(2)(j) and 718.1255 and the rules adopted
1809thereunder. For the purposes of this section, the members who
1810voted at the meeting or who executed the agreement in writing
1811shall constitute one party under the petition for arbitration.
1812If the arbitrator certifies the recall as to any director or
1813directors of the board, the recall will be effective upon
1814mailing of the final order of arbitration to the association.
1815The director or directors so recalled shall deliver to the board
1816any and all records of the association in their possession
1817within 5 full business days after the effective date of the
1818recall.
1819     (12)  COMPENSATION PROHIBITED.-A director, officer, or
1820committee member of the association may not receive, directly or
1821indirectly, any salary or compensation from the association for
1822the performance of duties as a director, officer, or committee
1823member and may not in any other way benefit financially from
1824service to the association. This subsection does not preclude:
1825     (a)  Participation by such person in a financial benefit
1826accruing to all or a significant number of members as a result
1827of actions lawfully taken by the board or a committee of which
1828he or she is a member, including, but not limited to, routine
1829maintenance, repair, or replacement of community assets.
1830     (b)  Reimbursement for out-of-pocket expenses incurred by
1831such person on behalf of the association, subject to approval in
1832accordance with procedures established by the association's
1833governing documents or, in the absence of such procedures, in
1834accordance with an approval process established by the board.
1835     (c)  Any recovery of insurance proceeds derived from a
1836policy of insurance maintained by the association for the
1837benefit of its members.
1838     (d)  Any fee or compensation authorized in the governing
1839documents.
1840     (e)  Any fee or compensation authorized in advance by a
1841vote of a majority of the voting interests voting in person or
1842by proxy at a meeting of the members.
1843     (f)  A developer or its representative from serving as a
1844director, officer, or committee member of the association and
1845benefiting financially from service to the association.
1846     (13)  BORROWING.-The borrowing of funds or committing to a
1847line of credit by the board of administration shall be
1848considered a special assessment, and any meeting of the board of
1849administration to discuss such matters must be noticed as
1850provided in paragraph (2)(c). The board may not borrow funds or
1851enter into a line of credit for any purpose unless the specific
1852use of the funds from the loan or line of credit is set forth in
1853the notice of meeting with the same specificity as required for
1854a special assessment or unless the borrowing or line of credit
1855has received the prior approval of at least two-thirds of the
1856voting interests of the association.
1857     (14)  TRANSFER FEES.-No charge may be made by the
1858association or anyone on its behalf in connection with the sale,
1859mortgage, lease, sublease, or other transfer of a parcel.
1860Nothing in this subsection may be construed to prohibit an
1861association from requiring as a condition to permitting the
1862letting or renting of a parcel, when the association has such
1863authority in the documents, the depositing into an escrow
1864account maintained by the association of a security deposit in
1865an amount not to exceed the equivalent of 1 month's rent. The
1866security deposit shall protect against damages to the common
1867areas or association property. Within 15 days after a tenant
1868vacates the premises, the association shall refund the full
1869security deposit or give written notice to the tenant of any
1870claim made against the security. Disputes under this subsection
1871shall be handled in the same fashion as disputes concerning
1872security deposits under s. 83.49.
1873     Section 16.  Paragraph (a) of subsection (2) of section
1874720.304, Florida Statutes, is amended to read:
1875     720.304  Right of owners to peaceably assemble; display of
1876flag; SLAPP suits prohibited.-
1877     (2)(a)  Any homeowner may display within the boundaries of
1878the homeowner's parcel one portable, removable United States
1879flag or official flag of the State of Florida in a respectful
1880manner, and one portable, removable official flag, in a
1881respectful way and, on Armed Forces Day, Memorial Day, Flag Day,
1882Independence Day, and Veterans' Day, may display in a respectful
1883way portable, removable official flags manner, not larger than 4
18841/2 feet by 6 feet, that represent which represents the United
1885States Army, Navy, Air Force, Marine Corps, or Coast Guard, or a
1886POW-MIA flag, regardless of any declaration covenants,
1887restrictions, bylaws, rules, or requirements dealing with flags
1888or decorations of the association.
1889     Section 17.  Subsection (2) of section 720.305, Florida
1890Statutes, is amended to read:
1891     720.305  Obligations of members; remedies at law or in
1892equity; levy of fines and suspension of use rights.-
1893     (2)  If the governing documents so provide, an association
1894may suspend, for a reasonable period of time, the rights of a
1895member or a member's tenants, guests, or invitees, or both, to
1896use common areas and facilities and may levy reasonable fines of
1897up to, not to exceed $100 per violation, against any member or
1898any tenant, guest, or invitee. A fine may be levied on the basis
1899of each day of a continuing violation, with a single notice and
1900opportunity for hearing, except that no such fine may shall
1901exceed $1,000 in the aggregate unless otherwise provided in the
1902governing documents. A fine of less than $1,000 may shall not
1903become a lien against a parcel. In any action to
1904the prevailing party is entitled to collect its
1905attorney's fees and costs from the nonprevailing
1906determined by the court.
1907     (a)  A fine or suspension may not be imposed without notice
1908of at least 14 days' notice days to the person sought to be
1909fined or suspended and an opportunity for a hearing before a
1910committee of at least three members appointed by the board who
1911are not officers, directors, or employees of the association, or
1912the spouse, parent, child, brother, or sister of an officer,
1913director, or employee. If the committee, by majority vote, does
1914not approve a proposed fine or suspension, it may not be
1915imposed.
1916     (b)  The requirements of this subsection do not apply to
1917the imposition of suspensions or fines upon any member because
1918of the failure of the member to pay assessments or other charges
1919when due if such action is authorized by the governing
1920documents.
1921     (c)  Suspension of common-area-use rights do shall not
1922impair the right of an owner or tenant of a parcel to have
1923vehicular and pedestrian ingress to and egress from the parcel,
1924including, but not limited to, the right to park.
1925     Section 18.  Subsections (8) and (9) of section 720.306,
1926Florida Statutes, are amended to read:
1927     720.306  Meetings of members; voting and election
1928procedures; amendments.-
1929     (8)  PROXY VOTING.-The members have the right, unless
1930otherwise provided in this subsection or in the governing
1931documents, to vote in person or by proxy.
1932     (a)  To be valid, a proxy must be dated, must state the
1933date, time, and place of the meeting for which it was given, and
1934must be signed by the authorized person who executed the proxy.
1935A proxy is effective only for the specific meeting for which it
1936was originally given, as the meeting may lawfully be adjourned
1937and reconvened from time to time, and automatically expires 90
1938days after the date of the meeting for which it was originally
1939given. A proxy is revocable at any time at the pleasure of the
1940person who executes it. If the proxy form expressly so provides,
1941any proxy holder may appoint, in writing, a substitute to act in
1942his or her place.
1943     (b)  If the governing documents permit voting by secret
1944ballot by members who are not in attendance at a meeting of the
1945members for the election of directors, such ballots shall be
1946placed in an inner envelope with no identifying markings and
1947mailed or delivered to the association in an outer envelope
1948bearing identifying information reflecting the name of the
1949member, the lot or parcel for which the vote is being cast, and
1950the signature of the lot or parcel owner casting that ballot.
1951After the eligibility of the member to vote and confirmation
1952that no other ballot has been submitted for that lot or parcel,
1953the inner envelope shall be removed from the outer envelope
1954bearing the identification information, placed with the ballots
1955which were personally cast, and opened when the ballots are
1956counted. If more than one ballot is submitted for a lot or
1957parcel, the ballots for that lot or parcel shall be
1958disqualified. Any vote by ballot received after the closing of
1959the balloting may not be considered.
1960     (9)  ELECTIONS; BOARD MEMBER CERTIFICATION.-
1961     (a)  Elections of directors must be conducted in accordance
1962with the procedures set forth in the governing documents of the
1963association. All members of the association are shall be
1964eligible to serve on the board of directors, and a member may
1965nominate himself or herself as a candidate for the board at a
1966meeting where the election is to be held or, if the election
1967process allows voting by absentee ballot, in advance of the
1968balloting. Except as otherwise provided in the governing
1969documents, boards of directors must be elected by a plurality of
1970the votes cast by eligible voters. Any election dispute between
1971a member and an association must be submitted to mandatory
1972binding arbitration with the division. Such proceedings shall be
1973conducted in the manner provided by s. 720.507 718.1255 and the
1974procedural rules adopted by the division.
1975     (b)  Within 30 days after being elected to the board of
1976directors, a new director shall certify in writing to the
1977secretary of the association that he or she has read the
1978association's declarations of covenants and restrictions,
1979articles of incorporation, bylaws, and current written policies
1980and that he or she will work to uphold each to the best of his
1981or her ability and will faithfully discharge his or her
1982fiduciary responsibility to the association's members. Failure
1983to timely file such statement shall automatically disqualify the
1984director from service on the association's board of directors.
1985The secretary shall cause the association to retain a director's
1986certification for inspection by the members for 5 years after a
1987director's election. Failure to have such certification on file
1988does not affect the validity of any appropriate action.
1989     Section 19.  Section (8) is added to section 720.3085,
1990Florida Statutes, to read:
1991     720.3085  Payment for assessments; lien claims.-
1992     (8)  During the pendency of any foreclosure action of a
1993parcel within a homeowners' association, if the home is occupied
1994by a tenant and the parcel owner is delinquent in the payment of
1995regular assessments, the association may demand that the tenant
1996pay to the association the future regular assessments related to
1997the parcel. The demand shall be continuing in nature, and upon
1998demand the tenant shall continue to pay the regular assessments
1999to the association until the association releases the tenant or
2000the tenant discontinues tenancy in the home. The association
2001shall mail written notice to the parcel owner of the
2002association's demand that the tenant pay regular assessments to
2003the association. The tenant shall not be liable for increases in
2004the amount of the regular assessment due unless the tenant was
2005reasonably notified of the increase prior to the day that the
2006rent is due. The tenant shall be given a credit against rents
2007due to the parcel owner in the amount of assessments paid to the
2008association. The association shall, upon request, provide the
2009tenant with written receipts for payments made. The association
2010may issue notices under s. 83.56 and may sue for eviction under
2011ss. 83.59-83.625 as if the association were a landlord under
2012part II of chapter 83 should the tenant fail to pay an
2013assessment. However, the association shall not otherwise be
2014considered a landlord under chapter 83 and shall specifically
2015not have any duty under s. 83.51. The tenant shall not, by
2016virtue of payment of assessments, have any of the rights of a
2017parcel owner to vote in any election or to examine the books and
2018records of the association. A court may supersede the effect of
2019this subsection by appointing a receiver. Payments made by a
2020tenant pursuant to this subsection in lieu of or as a credit
2021against rent shall not be considered a breach of any lease
2022between the tenant and the parcel owner nor serve as cause for
2023eviction or other action for failure to pay rent. Under no
2024circumstances shall the amount of assessments for which a tenant
2025is held responsible under this subsection exceed the amount owed
2026in rent to the parcel owner.
2027     Section 20.  Section 720.3095, Florida Statutes, is created
2028to read:
2029     720.3095  Management and maintenance agreements entered
2030into by the association.-
2031     (1)  A written contract between a party contracting to
2032provide maintenance or management services and an association
2033which provides for operation, maintenance, or management of a
2034homeowners' association is not valid or enforceable unless the
2035contract:
2036     (a)  Specifies the services, obligations, and
2037responsibilities of the party contracting to provide maintenance
2038or management services to the parcel owners.
2039     (b)  Specifies those costs incurred in the performance of
2040those services, obligations, or responsibilities which are to be
2041reimbursed by the association to the party contracting to
2042provide maintenance or management services.
2043     (c)  Provides an indication of how often each service,
2044obligation, or responsibility is to be performed, whether stated
2045for each service, obligation, or responsibility or in categories
2046thereof.
2047     (d)  Specifies a minimum number of personnel to be employed
2048by the party contracting to provide maintenance or management
2049services for the purpose of providing service to the
2050association.
2051     (e)  Discloses any financial or ownership interest which
2052the developer, if the developer is in control of the
2053association, holds with regard to the party contracting to
2054provide maintenance or management services.
2055     (f)  Discloses any financial or ownership interest a board
2056member or any party providing maintenance or management services
2057to the association holds with the contracting party.
2058     (2)  In any case in which the party contracting to provide
2059maintenance or management services fails to provide such
2060services in accordance with the contract, the association is
2061authorized to procure such services from some other party and
2062shall be entitled to collect any fees or charges paid for
2063services performed by another party from the party contracting
2064to provide maintenance or management services.
2065     (3)  Any services or obligations not stated on the face of
2066the contract shall be unenforceable.
2067     (4)  Notwithstanding the fact that certain vendors contract
2068with associations to maintain equipment or property which is
2069made available to serve parcel owners, it is the intent of the
2070Legislature that this section applies to contracts for
2071maintenance or management services for which the association
2072pays compensation. This section does not apply to contracts for
2073services or property made available for the convenience of
2074parcel owners by lessees or licensees of the association, such
2075as coin-operated laundry, food, soft drink, or telephone
2076vendors; cable television operators; retail store operators;
2077businesses; restaurants; or similar vendors.
2078     Section 21.  Section 720.3096, Florida Statutes, is created
2079to read:
2080     720.3096  Limitation on agreements entered into by the
2081association.-As to any contract or other transaction between an
2082association and one or more of its directors or any other
2083corporation, firm, association, or entity in which one or more
2084of its directors are directors or officers or are financially
2085interested:
2086     (1)  The association must comply with the requirements of
2087s. 617.0832.
2088     (2)  The disclosures required by s. 617.0832 must be
2089entered into the written minutes of the meeting.
2090     (3)  Approval of the contract or other transaction requires
2091an affirmative vote of at least two-thirds of the directors
2092present.
2093     (4)  At the next regular or special meeting of the members,
2094the existence of the contract or other transaction must be
2095disclosed to the members. Upon motion of any member, the
2096contract or transaction shall be brought up for a vote and may
2097be canceled by a majority vote of the members present. If the
2098members cancel the contract, the association is liable for only
2099the reasonable value of goods and services provided up to the
2100time of cancellation and is not liable for any termination fee,
2101liquidated damages, or other form of penalty for such
2102cancellation.
2103     Section 22.  Section 720.311, Florida Statutes, is
2104repealed.
2105     Section 23.  Paragraph (a) of subsection (1) of section
2106720.401, Florida Statutes, is amended to read:
2107     720.401  Prospective purchasers subject to association
2108membership requirement; disclosure required; covenants;
2109assessments; contract cancellation.-
2110     (1)(a)  A prospective parcel owner in a community must be
2111presented a disclosure summary before executing the contract for
2112sale. The disclosure summary must be in a form substantially
2113similar to the following form:
2114
2115
DISCLOSURE SUMMARY
2116
FOR
2117
(NAME OF COMMUNITY)
2118
2119     1.  AS A PURCHASER OF PROPERTY IN THIS COMMUNITY, YOU WILL
2120BE OBLIGATED TO BE A MEMBER OF A HOMEOWNERS' ASSOCIATION.
2121     2.  THERE HAVE BEEN OR WILL BE RECORDED RESTRICTIVE
2122COVENANTS GOVERNING THE USE AND OCCUPANCY OF PROPERTIES IN THIS
2123COMMUNITY.
2124     3.  YOU WILL BE OBLIGATED TO PAY ASSESSMENTS TO THE
2125ASSOCIATION. ASSESSMENTS MAY BE SUBJECT TO PERIODIC CHANGE. IF
2126APPLICABLE, THE CURRENT AMOUNT IS $_____ PER _____. YOU WILL
2127ALSO BE OBLIGATED TO PAY ANY SPECIAL ASSESSMENTS IMPOSED BY THE
2128ASSOCIATION. SUCH SPECIAL ASSESSMENTS MAY BE SUBJECT TO CHANGE.
2129IF APPLICABLE, THE CURRENT AMOUNT IS $_____ PER _____.
2130     4.  YOU MAY BE OBLIGATED TO PAY SPECIAL ASSESSMENTS TO THE
2131RESPECTIVE MUNICIPALITY, COUNTY, OR SPECIAL DISTRICT. ALL
2132ASSESSMENTS ARE SUBJECT TO PERIODIC CHANGE.
2133     5.  YOUR FAILURE TO PAY SPECIAL ASSESSMENTS OR ASSESSMENTS
2134LEVIED BY A MANDATORY HOMEOWNERS' ASSOCIATION MAY COULD RESULT
2135IN A LIEN ON YOUR PROPERTY.
2136     6.  THERE MAY BE AN OBLIGATION TO PAY RENT OR LAND USE FEES
2137FOR RECREATIONAL OR OTHER COMMONLY USED FACILITIES AS AN
2138OBLIGATION OF MEMBERSHIP IN THE HOMEOWNERS' ASSOCIATION. IF
2139APPLICABLE, THE CURRENT AMOUNT IS $_____ PER _____.
2140     7.  IF THE ASSOCIATION IS STILL UNDER THE CONTROL OF THE
2141DEVELOPER, THE DEVELOPER MAY HAVE THE RIGHT TO AMEND THE
2142RESTRICTIVE COVENANTS WITHOUT THE APPROVAL OF THE ASSOCIATION
2143MEMBERSHIP OR THE APPROVAL OF THE PARCEL OWNERS.
2144     8.  THE STATEMENTS CONTAINED IN THIS DISCLOSURE FORM ARE
2145ONLY SUMMARY IN NATURE, AND, AS A PROSPECTIVE PURCHASER, YOU
2146SHOULD REFER TO THE COVENANTS AND THE ASSOCIATION GOVERNING
2147DOCUMENTS BEFORE PURCHASING PROPERTY.
2148     9.  THESE DOCUMENTS ARE EITHER MATTERS OF PUBLIC RECORD AND
2149CAN BE OBTAINED FROM THE RECORD OFFICE IN THE COUNTY WHERE THE
2150PROPERTY IS LOCATED, OR, IF ARE NOT RECORDED, AND CAN BE
2151OBTAINED FROM THE DEVELOPER.
2152     10.  THERE MAY BE AN OBLIGATION TO PAY ASSESSMENTS (TAXES
2153OR FEES) TO A RESIDENTIAL COMMUNITY DEVELOPMENT DISTRICT FOR THE
2154PURPOSE OF RETIRING BOND OBLIGATIONS USED TO CONSTRUCT
2155INFRASTRUCTURE OR OTHER IMPROVEMENTS.
2156     11.  YOU ARE JOINTLY AND SEVERALLY LIABLE WITH THE PREVIOUS
2157OWNER OF YOUR PROPERTY FOR ALL UNPAID ASSESSMENTS THAT CAME DUE
2158UP TO THE TIME OF TRANSFER OF TITLE.
2159
2160DATE:     PURCHASER:
2161     PURCHASER:
2162
2163The disclosure must be supplied by the developer, or by the
2164parcel owner if the sale is by an owner that is not the
2165developer. Any contract or agreement for sale shall refer to and
2166incorporate the disclosure summary and shall include, in
2167prominent language, a statement that the potential buyer should
2168not execute the contract or agreement until he or she has they
2169have received and read the disclosure summary required by this
2170section.
2171     Section 24.  Part IV of chapter 720, Florida Statutes,
2172consisting of sections 720.501, 720.502, 720.503, 720.504,
2173720.505, 720.506, 720.507, 720.508, 720.509, and 720.510, is
2174created to read:
2175
PART IV
2176
DISPUTE RESOLUTION
2177     720.501  Short title.-This part may be cited as the "Home
2178Court Advantage Dispute Resolution Act."
2179     720.502  Legislative findings.-The Legislature finds that
2180alternative dispute resolution has made progress in reducing
2181court dockets and trials and in offering a more efficient, cost-
2182effective option to litigation.
2183     720.503  Applicability of this part.-
2184     (1)  Unless otherwise provided in this part, before a
2185dispute described in this part between a homeowners' association
2186and a parcel owner or owners, or a dispute between parcel owners
2187within the same homeowners' association, may be filed in court,
2188the dispute is subject to presuit mediation pursuant to s.
2189720.505 or presuit arbitration pursuant to s. 720.507, at the
2190option of the aggrieved party who initiates the first formal
2191action of alternative dispute resolution under this part. The
2192parties may mutually agree to participate in both presuit
2193mediation and presuit arbitration prior to suit being filed by
2194either party.
2195     (2)  Unless otherwise provided in this part, the mediation
2196and arbitration provisions of this part are limited to disputes
2197between an association and a parcel owner or owners or between
2198parcel owners regarding the use of or changes to the parcel or
2199the common areas under the governing documents and other
2200disputes involving violations of the recorded declaration of
2201covenants or other governing documents, disputes arising
2202concerning enforcement of the governing documents or any
2203amendments thereto, and disputes involving access to the
2204official records of the association. A dispute concerning title
2205to any parcel or common area, interpretation or enforcement of
2206any warranty, the levy of a fee or assessment, the collection of
2207an assessment levied against a party, the eviction or other
2208removal of a tenant from a parcel, alleged breaches of fiduciary
2209duty by one or more directors, or any action to collect mortgage
2210indebtedness or to foreclosure a mortgage shall not be subject
2211to the provisions of this part.
2212     (3)  A dispute arising after the effective date of this
2213part involving the election of the board of directors for an
2214association or the recall of any member of the board or officer
2215of the association is ineligible for presuit mediation under s.
2216720.505 and subject to presuit arbitration under s. 720.507.
2217     (4)  In any dispute subject to presuit mediation or presuit
2218arbitration under this part for which emergency relief is
2219required, a motion for temporary injunctive relief may be filed
2220with the court without first complying with the presuit
2221mediation or presuit arbitration requirements of this part.
2222After any issues regarding emergency or temporary relief are
2223resolved, the court may refer the parties to a mediation program
2224administered by the courts or require mediation or arbitration
2225under this part.
2226     (5)  The mailing of a statutory notice of presuit mediation
2227or presuit arbitration as provided in this part shall toll the
2228applicable statute of limitations during the pendency of the
2229mediation or arbitration and for a period of 30 days following
2230the conclusion of either proceeding. The 30-day period shall
2231start upon the filing of the mediator's notice of impasse or the
2232arbitrator's written arbitration award. If the parties mutually
2233agree to participate in both presuit mediation and presuit
2234arbitration under this part, the tolling of the applicable
2235statute of limitations for each such alternative dispute
2236resolution proceeding shall be consecutive.
2237     720.504  Notice of dispute.-Prior to giving the statutory
2238notice to proceed under presuit mediation or presuit arbitration
2239under this part, the aggrieved association or parcel owner must
2240first provide written notice of the dispute to the responding
2241party in the manner provided by this section.
2242     (1)  The notice of dispute shall be delivered to the
2243responding party by certified mail, return receipt requested, or
2244in person, and the person making delivery shall file with the
2245notice of mediation either the proof of receipt of mailing or an
2246affidavit stating the date and time of the delivery of the
2247notice of dispute. If the notice is delivered by certified mail,
2248return receipt requested, and the responding party fails or
2249refuses to accept delivery, notice shall be considered properly
2250delivered for purposes of this section on the date of the first
2251attempted delivery.
2252     (2)  The notice of dispute shall state with specificity the
2253nature of the dispute, including the date, time, and location of
2254each event that is the subject of the dispute and the action
2255requested to resolve the dispute. The notice shall also include
2256the text of any provision in the governing documents, including
2257the rules and regulations, of the association which form the
2258basis of the dispute.
2259     (3)  Unless the parties otherwise agree in writing to a
2260longer time period, the party receiving the notice of dispute
2261shall have 10 days following the date of receipt of notice to
2262resolve the dispute. If the alleged dispute has not been
2263resolved within the 10-day period, the aggrieved party may
2264proceed under this part at any time thereafter within the
2265applicable statute of limitations.
2266     (4)  A copy of the notice and the text of the provision in
2267the governing documents, or the rules and regulations, of the
2268association which are the basis of the dispute, along with proof
2269of service of the notice of dispute and a copy of any written
2270responses received from the responding party, shall be included
2271as an exhibit to any demand for mediation or arbitration under
2272this part.
2273     720.505  Presuit mediation.-
2274     (1)  Disputes between an association and a parcel owner or
2275owners or between parcel owners must be submitted to presuit
2276mediation before the dispute may be filed in court; or, at the
2277election of the party initiating the presuit procedures, such
2278dispute may be submitted to presuit arbitration pursuant to s.
2279720.507 before the dispute may be filed in court. An aggrieved
2280party who elects to use the presuit mediation procedure under
2281this section shall serve on the responding party a written
2282notice of presuit mediation in substantially the following form:
2283
2284
STATUTORY NOTICE OF PRESUIT MEDIATION
2285
2286THE ALLEGED AGGRIEVED PARTY, ____________________,
2287HEREBY DEMANDS THAT ____________________, AS THE
2288RESPONDING PARTY, ENGAGE IN MANDATORY PRESUIT
2289MEDIATION IN CONNECTION WITH THE FOLLOWING DISPUTE(S)
2290WITH YOU, WHICH BY STATUTE ARE OF A TYPE THAT ARE
2291SUBJECT TO PRESUIT MEDIATION:
2292
2293ATTACHED IS A COPY OF THE PRIOR NOTICE OF VIOLATION
2294WHICH DETAILS THE SPECIFIC NATURE OF THE DISPUTE(S) TO
2295BE MEDIATED AND THE AUTHORITY SUPPORTING A FINDING OF
2296A VIOLATION AS TO EACH DISPUTE, INCLUDING, BUT NOT
2297LIMITED TO, THE APPLICABLE PROVISIONS OF THE GOVERNING
2298DOCUMENTS OF THE ASSOCIATION BELIEVED TO APPLY TO THE
2299DISPUTE BETWEEN THE PARTIES, AND A COPY OF THE NOTICE
2300YOU RECEIVED OR REFUSED AND COPIES OF ANY WRITTEN
2301RESPONSE(S) RECEIVED FROM YOU ABOUT THIS DISPUTE.
2302
2303PURSUANT TO PART IV OF CHAPTER 720, FLORIDA STATUTES,
2304THIS DEMAND TO RESOLVE THE DISPUTE THROUGH PRESUIT
2305MEDIATION IS REQUIRED BEFORE A LAWSUIT CAN BE FILED
2306CONCERNING THE DISPUTE. PURSUANT TO FLORIDA STATUTES,
2307THE PARTIES ARE REQUIRED TO ENGAGE IN PRESUIT
2308MEDIATION WITH A NEUTRAL THIRD-PARTY MEDIATOR IN ORDER
2309TO ATTEMPT TO RESOLVE THIS DISPUTE WITHOUT COURT
2310ACTION, AND THE AGGRIEVED PARTY DEMANDS THAT YOU
2311PARTICIPATE IN THIS PROCESS. UNLESS YOU RESPOND TO
2312THIS NOTICE BY FILING WITH THE AGGRIEVED PARTY A
2313NOTICE OF OPTING OUT AND DEMAND FOR ARBITRATION UNDER
2314SECTION 720.506, FLORIDA STATUTES, YOUR FAILURE TO
2315PARTICIPATE IN THE MEDIATION PROCESS MAY RESULT IN A
2316LAWSUIT BEING FILED IN COURT AGAINST YOU WITHOUT
2317FURTHER NOTICE.
2318
2319THE PROCESS OF MEDIATION INVOLVES A SUPERVISED
2320NEGOTIATION PROCESS IN WHICH A TRAINED, NEUTRAL THIRD-
2321PARTY MEDIATOR MEETS WITH BOTH PARTIES AND ASSISTS
2322THEM IN EXPLORING POSSIBLE OPPORTUNITIES FOR RESOLVING
2323PART OR ALL OF THE DISPUTE. BY AGREEING TO PARTICIPATE
2324IN PRESUIT MEDIATION, YOU ARE NOT BOUND IN ANY WAY TO
2325CHANGE YOUR POSITION. FURTHERMORE, THE MEDIATOR HAS NO
2326AUTHORITY TO MAKE ANY DECISIONS IN THIS MATTER OR TO
2327DETERMINE WHO IS RIGHT OR WRONG AND MERELY ACTS AS A
2328FACILITATOR TO ENSURE THAT EACH PARTY UNDERSTANDS THE
2329POSITION OF THE OTHER PARTY AND THAT ALL OPTIONS FOR
2330REASONABLE SETTLEMENT ARE FULLY EXPLORED.
2331
2332IF AN AGREEMENT IS REACHED, IT SHALL BE REDUCED TO
2333WRITING AND BECOME A BINDING AND ENFORCEABLE CONTRACT
2334BETWEEN THE PARTIES. A RESOLUTION OF ONE OR MORE
2335DISPUTES IN THIS FASHION AVOIDS THE NEED TO LITIGATE
2336THESE ISSUES IN COURT. THE FAILURE TO REACH AN
2337AGREEMENT, OR THE FAILURE OF A PARTY TO PARTICIPATE IN
2338THE PROCESS, RESULTS IN THE MEDIATOR DECLARING AN
2339IMPASSE IN THE MEDIATION, AFTER WHICH THE AGGRIEVED
2340PARTY MAY PROCEED TO FILE A LAWSUIT ON ALL
2341OUTSTANDING, UNSETTLED DISPUTES. IF YOU HAVE FAILED OR
2342REFUSED TO PARTICIPATE IN THE ENTIRE MEDIATION
2343PROCESS, YOU WILL NOT BE ENTITLED TO RECOVER
2344ATTORNEY'S FEES IF YOU PREVAIL IN A SUBSEQUENT COURT
2345PROCEEDING INVOLVING THE SAME DISPUTE.
2346
2347THE AGGRIEVED PARTY HAS SELECTED FROM A LIST OF
2348ELIGIBLE, QUALIFIED MEDIATORS AT LEAST FIVE CERTIFIED
2349MEDIATORS WHO THE AGGRIEVED PARTY BELIEVES TO BE
2350NEUTRAL AND QUALIFIED TO MEDIATE THE DISPUTE. YOU HAVE
2351THE RIGHT TO SELECT ANY ONE OF THESE MEDIATORS. THE
2352FACT THAT ONE PARTY MAY BE FAMILIAR WITH ONE OR MORE
2353OF THE LISTED MEDIATORS DOES NOT MEAN THAT THE
2354MEDIATOR CANNOT ACT AS A NEUTRAL AND IMPARTIAL
2355FACILITATOR. THE NAMES OF THE MEDIATORS THAT THE
2356AGGRIEVED PARTY HEREBY SUBMITS TO YOU FROM WHOM YOU
2357MAY CHOOSE ONE, AND THEIR CURRENT ADDRESSES, TELEPHONE
2358NUMBERS, AND HOURLY RATES ARE AS FOLLOWS:
2359
2360(LIST THE NAMES, ADDRESSES, TELEPHONE NUMBERS, AND
2361HOURLY RATES OF THE MEDIATORS. OTHER PERTINENT
2362INFORMATION ABOUT THE BACKGROUND OF THE MEDIATORS MAY
2363BE INCLUDED AS AN ATTACHMENT.)
2364
2365YOU MAY CONTACT THE OFFICES OF THESE MEDIATORS TO
2366CONFIRM THAT EACH OF THE ABOVE-LISTED MEDIATORS WILL
2367BE NEUTRAL AND WILL NOT SHOW ANY FAVORITISM TOWARD
2368EITHER PARTY. UNLESS OTHERWISE AGREED TO BY THE
2369PARTIES, PART IV OF CHAPTER 720, FLORIDA STATUTES,
2370REQUIRES THAT THE PARTIES SHARE THE COSTS OF PRESUIT
2371MEDIATION EQUALLY, INCLUDING THE FEE CHARGED BY THE
2372MEDIATOR. AN AVERAGE MEDIATION MAY REQUIRE 3 TO 4
2373HOURS OF THE MEDIATOR'S TIME, INCLUDING SOME
2374PREPARATION TIME, AND THE PARTIES WOULD NEED TO
2375EQUALLY SHARE THE MEDIATOR'S FEES AS WELL AS BE
2376RESPONSIBLE FOR ALL OF THEIR OWN ATTORNEY'S FEES IF
2377THEY CHOOSE TO EMPLOY AN ATTORNEY IN CONNECTION WITH
2378THE MEDIATION. HOWEVER, USE OF AN ATTORNEY IS NOT
2379REQUIRED AND IS AT THE OPTION OF EACH PARTY. THE
2380MEDIATORS MAY REQUIRE THE ADVANCE PAYMENT OF SOME OR
2381ALL OF THE ANTICIPATED FEES. THE AGGRIEVED PARTY
2382HEREBY AGREES TO PAY OR PREPAY ONE-HALF OF THE
2383SELECTED MEDIATOR'S ESTIMATED FEES AND TO FORWARD THIS
2384AMOUNT OR SUCH OTHER REASONABLE ADVANCE DEPOSITS AS
2385THE MEDIATOR REQUIRES FOR THIS PURPOSE UPON THE
2386SELECTION OF THE MEDIATOR. ANY FUNDS DEPOSITED WILL BE
2387RETURNED TO YOU IF THESE FUNDS ARE IN EXCESS OF YOUR
2388SHARE OF THE MEDIATOR FEES INCURRED.
2389
2390TO BEGIN YOUR PARTICIPATION IN PRESUIT MEDIATION TO
2391TRY TO RESOLVE THE DISPUTE WITH YOU AND AVOID FURTHER
2392LEGAL ACTION, PLEASE SIGN BELOW AND CLEARLY INDICATE
2393WHICH MEDIATOR IS ACCEPTABLE TO YOU FROM THE FIVE
2394MEDIATORS LISTED BY THE AGGRIEVED PARTY ABOVE.
2395
2396YOU MUST RESPOND IN WRITING TO THIS STATUTORY NOTICE
2397OF PRESUIT MEDIATION WITHIN 20 DAYS. IN YOUR RESPONSE
2398YOU MUST PROVIDE A LISTING OF AT LEAST THREE DATES AND
2399TIMES IN WHICH YOU ARE AVAILABLE TO PARTICIPATE IN THE
2400MEDIATION THAT ARE WITHIN 90 DAYS AFTER THE POSTMARKED
2401DATE OF THE MAILING OF THIS NOTICE OF PRESUIT
2402MEDIATION OR WITHIN 90 DAYS AFTER THE DATE YOU WERE
2403SERVED WITH A COPY OF THIS NOTICE. THE AGGRIEVED PARTY
2404WILL THEN ASK THE MEDIATOR TO SCHEDULE A MUTUALLY
2405CONVENIENT TIME AND PLACE FOR THE MEDIATION CONFERENCE
2406TO BE HELD. IF YOU DO NOT PROVIDE A LIST OF AVAILABLE
2407DATES AND TIMES, THE MEDIATOR IS AUTHORIZED TO
2408SCHEDULE A MEDIATION CONFERENCE WITHOUT TAKING YOUR
2409SCHEDULE AND CONVENIENCE INTO CONSIDERATION. IN NO
2410EVENT SHALL THE MEDIATION CONFERENCE BE LATER THAN 90
2411DAYS AFTER THE NOTICE OF PRESUIT MEDIATION WAS FIRST
2412SERVED UNLESS ALL PARTIES MUTUALLY AGREE OTHERWISE. IN
2413THE EVENT THAT YOU FAIL TO RESPOND WITHIN 20 DAYS
2414AFTER THE DATE OF THIS NOTICE, FAIL TO PROVIDE THE
2415MEDIATOR WITH DATES AND TIMES IN WHICH YOU ARE
2416AVAILABLE FOR THE MEDIATION CONFERENCE, FAIL TO AGREE
2417TO ONE OF THE MEDIATORS THAT THE AGGRIEVED PARTY HAS
2418LISTED, FAIL TO PAY OR PREPAY TO THE MEDIATOR ONE-HALF
2419OF THE COSTS INVOLVED, OR FAIL TO APPEAR AND
2420PARTICIPATE AT THE SCHEDULED MEDIATION, THE AGGRIEVED
2421PARTY WILL BE AUTHORIZED TO PROCEED WITH THE FILING OF
2422A LAWSUIT AGAINST YOU WITHOUT FURTHER NOTICE. IN ANY
2423SUBSEQUENT COURT ACTION, THE AGGRIEVED PARTY MAY SEEK
2424AN AWARD OF REASONABLE ATTORNEY'S FEES AND COSTS
2425INCURRED IN ATTEMPTING TO OBTAIN MEDIATION.
2426
2427PLEASE GIVE THIS MATTER YOUR IMMEDIATE ATTENTION. BY
2428LAW, YOUR RESPONSE MUST BE MAILED BY CERTIFIED, FIRST-
2429CLASS MAIL, RETURN RECEIPT REQUESTED, TO THE AGGRIEVED
2430PARTY LISTED ABOVE AT THE ADDRESS SHOWN ON THIS NOTICE
2431AND POSTMARKED NO MORE THAN 20 DAYS AFTER THE DATE OF
2432THE POSTMARKED DATE FOR THIS NOTICE OR WITHIN 20 DAYS
2433AFTER THE DATE UPON WHICH YOU WERE SERVED WITH A COPY
2434OF THIS NOTICE.
2435
2436________________________
2437SIGNATURE OF AGGRIEVED PARTY
2438
2439______________________
2440PRINTED NAME OF AGGRIEVED PARTY
2441
2442RESPONDING PARTY: YOUR SIGNATURE BELOW INDICATES YOUR
2443ACCEPTANCE OF THE AGREEMENT TO MEDIATE.
2444
2445
AGREEMENT TO MEDIATE
2446
2447THE UNDERSIGNED HEREBY AGREES TO PARTICIPATE IN
2448PRESUIT MEDIATION AND AGREES TO ATTEND A MEDIATION
2449CONDUCTED BY THE MEDIATOR LISTED BELOW AS ACCEPTABLE
2450TO MEDIATE THIS DISPUTE:
2451
2452(LIST ONE ACCEPTABLE MEDIATOR FROM THOSE LISTED BY THE
2453AGGRIEVED PARTY.)
2454
2455THE UNDERSIGNED HEREBY REPRESENTS THAT HE OR SHE CAN
2456ATTEND AND PARTICIPATE IN THE PRESUIT MEDIATION AT THE
2457FOLLOWING DATES AND TIMES:
2458
2459(LIST AT LEAST THREE AVAILABLE DATES AND TIMES WITHIN
2460THE 90-DAY TIME LIMIT DESCRIBED ABOVE.)
2461
2462I/WE FURTHER AGREE TO PAY OR PREPAY ONE-HALF OF THE
2463MEDIATOR'S FEES AND TO FORWARD SUCH ADVANCE DEPOSITS
2464AS THE MEDIATOR MAY REQUIRE FOR THIS PURPOSE.
2465
2466______________________________
2467SIGNATURE OF RESPONDING PARTY #1
2468______________________________
2469TELEPHONE CONTACT INFORMATION
2470
2471______________________________
2472SIGNATURE AND TELEPHONE CONTACT INFORMATION OF
2473RESPONDING PARTY #2, IF APPLICABLE. IF THE PROPERTY IS
2474OWNED BY MORE THAN ONE PERSON, ALL OWNERS MUST SIGN,
2475OR A PERSON MAY SIGN WHO IS ACTING UNDER AUTHORITY OF
2476A VALID POWER OF ATTORNEY GRANTED BY AN OWNER.
2477
2478     (2)(a)  Service of the notice of presuit mediation shall be
2479effected either by personal service, as provided in chapter 48,
2480or by certified mail, return receipt requested, in a letter in
2481substantial conformity with the form provided in subsection (1),
2482with an additional copy being sent by regular first-class mail,
2483to the address of the responding party as it last appears on the
2484books and records of the association or, if not available, then
2485as it last appears in the official records of the county
2486property appraiser where the parcel in dispute is located. The
2487responding party has 20 days after the postmarked date of the
2488mailing of the statutory notice or the date the responding party
2489is served with a copy of the notice to serve a written response
2490to the aggrieved party. The response shall be served by
2491certified mail, return receipt requested, with an additional
2492copy being sent by regular first-class mail, to the address
2493shown on the statutory notice. The date of the postmark on the
2494envelope for the response shall constitute the date that the
2495response is served. Once the parties have agreed on a mediator,
2496the mediator may schedule or reschedule the mediation for a date
2497and time mutually convenient to the parties within 90 days after
2498the date of service of the statutory notice. After such 90-day
2499period, the mediator may reschedule the mediation only upon the
2500mutual written agreement of all the parties.
2501     (b)  The parties shall share the costs of presuit mediation
2502equally, including the fee charged by the mediator, if any,
2503unless the parties agree otherwise, and the mediator may require
2504advance payment of his or her reasonable fees and costs. Each
2505party shall be responsible for that party's own attorney's fees
2506if a party chooses to be represented by an attorney at the
2507mediation.
2508     (c)  The party responding to the aggrieved party may
2509provide a notice of opting out under s. 720.506 and demand
2510arbitration or may sign the agreement to mediate included in the
2511notice of presuit mediation. A responding party signing the
2512agreement to mediate must clearly indicate the name of the
2513mediator who is acceptable from the five names provided by the
2514aggrieved party and must provide a list of dates and times in
2515which the responding party is available to participate in the
2516mediation within 90 days after the date the responding party was
2517served, either by process server or by certified mail, with the
2518statutory notice of presuit mediation.
2519     (d)  The mediator who has been selected and agreed to
2520mediate must schedule the mediation conference at a mutually
2521convenient time and place within that 90-day period; but, if the
2522responding party does not provide a list of available dates and
2523times, the mediator is authorized to schedule a mediation
2524conference without taking the responding party's schedule and
2525convenience into consideration. Within 10 days after the
2526designation of the mediator, the mediator shall coordinate with
2527the parties and notify the parties in writing of the date, time,
2528and place of the mediation conference.
2529     (e)  The mediation conference must be held on the scheduled
2530date and may be rescheduled if a rescheduled date is approved by
2531the mediator. However, in no event shall the mediation be held
2532later than 90 days after the notice of presuit mediation was
2533first served, unless all parties mutually agree in writing
2534otherwise. If the presuit mediation is not completed within the
2535required time limits, the mediator shall declare an impasse
2536unless the mediation date is extended by mutual written
2537agreement by all parties and approved by the mediator.
2538     (f)  If the responding party fails to respond within 20
2539days after the date of service of the statutory notice of
2540presuit mediation, fails to agree to at least one of the
2541mediators listed by the aggrieved party in the notice, fails to
2542pay or prepay to the mediator one-half of the costs of the
2543mediator, or fails to appear and participate at the scheduled
2544mediation, the aggrieved party shall be authorized to proceed
2545with the filing of a lawsuit without further notice.
2546     (g)1.  The failure of any party to respond to the statutory
2547notice of presuit mediation within 20 days, the failure to agree
2548upon a mediator, the failure to provide a listing of dates and
2549times in which the responding party is available to participate
2550in the mediation within 90 days after the date the responding
2551party was served with the statutory notice of presuit mediation,
2552the failure to make payment of fees and costs within the time
2553established by the mediator, or the failure to appear for a
2554scheduled mediation session without the approval of the mediator
2555shall in each instance constitute a failure or refusal to
2556participate in the mediation process and shall operate as an
2557impasse in the presuit mediation by such party, entitling the
2558other party to file a lawsuit in court and to seek an award of
2559the costs and attorney's fees associated with the mediation.
2560     2.  Persons who fail or refuse to participate in the entire
2561mediation process may not recover attorney's fees and costs in
2562subsequent litigation relating to the same dispute between the
2563same parties. If any presuit mediation session cannot be
2564scheduled and conducted within 90 days after the offer to
2565participate in mediation was filed, through no fault of either
2566party, then an impasse shall be deemed to have occurred unless
2567the parties mutually agree in writing to extend this deadline.
2568In the event of such impasse, each party shall be responsible
2569for its own costs and attorney's fees and one-half of any
2570mediator fees and filing fees, and either party may file a
2571lawsuit in court regarding the dispute.
2572     720.506  Opt-out of presuit mediation.-A party served with
2573a notice of presuit mediation under s. 720.505 may opt out of
2574presuit mediation and demand that the dispute proceed under
2575nonbinding arbitration as follows:
2576     (1)  In lieu of a response to the notice of presuit
2577mediation as required under s. 720.505, the responding party may
2578serve upon the aggrieved party, in the same manner as the
2579response to a notice for presuit mediation under s. 720.505, a
2580notice of opting out of mediation and demand that the dispute
2581instead proceed to presuit arbitration under s. 720.507.
2582     (2)  The aggrieved party shall be relieved from having to
2583satisfy the requirements of s. 720.504 as a condition precedent
2584to filing the demand for presuit arbitration.
2585     (3)  Except as otherwise provided in this part, the choice
2586of which presuit alternative dispute resolution procedure is
2587used shall be at the election of the aggrieved party who first
2588initiated such proceeding after complying with the provisions of
2589s. 720.504.
2590     720.507  Presuit arbitration.-
2591     (1)  Disputes between an association and a parcel owner or
2592owners or between parcel owners are subject to a demand for
2593presuit arbitration pursuant to this section before the dispute
2594may be filed in court. A party who elects to use the presuit
2595arbitration procedure under this part shall serve on the
2596responding party a written notice of presuit arbitration in
2597substantially the following form:
2598
2599
STATUTORY NOTICE OF PRESUIT ARBITRATION
2600
2601THE ALLEGED AGGRIEVED PARTY, ____________________,
2602HEREBY DEMANDS THAT ____________________, AS THE
2603RESPONDING PARTY, ENGAGE IN MANDATORY PRESUIT
2604ARBITRATION IN CONNECTION WITH THE FOLLOWING
2605DISPUTE(S) WITH YOU, WHICH BY STATUTE ARE OF A TYPE
2606THAT ARE SUBJECT TO PRESUIT ARBITRATION:
2607
2608(LIST SPECIFIC NATURE OF THE DISPUTE OR DISPUTES TO BE
2609ARBITRATED AND THE AUTHORITY SUPPORTING A FINDING OF A
2610VIOLATION AS TO EACH DISPUTE, INCLUDING, BUT NOT
2611LIMITED TO, ALL APPLICABLE PROVISIONS OF THE GOVERNING
2612DOCUMENTS BELIEVED TO APPLY TO THE DISPUTE BETWEEN THE
2613PARTIES.)
2614
2615PURSUANT TO PART IV OF CHAPTER 720, FLORIDA STATUTES,
2616THIS DEMAND TO RESOLVE THE DISPUTE THROUGH PRESUIT
2617ARBITRATION IS REQUIRED BEFORE A LAWSUIT CAN BE FILED
2618CONCERNING THE DISPUTE. PURSUANT TO FLORIDA STATUTES,
2619THE PARTIES ARE REQUIRED TO ENGAGE IN PRESUIT
2620ARBITRATION WITH A NEUTRAL THIRD-PARTY ARBITRATOR IN
2621ORDER TO ATTEMPT TO RESOLVE THIS DISPUTE WITHOUT COURT
2622ACTION, AND THE AGGRIEVED PARTY DEMANDS THAT YOU
2623PARTICIPATE IN THIS PROCESS. IF YOU FAIL TO
2624PARTICIPATE IN THE ARBITRATION PROCESS, A LAWSUIT MAY
2625BE BROUGHT AGAINST YOU IN COURT WITHOUT FURTHER
2626WARNING.
2627
2628THE PROCESS OF ARBITRATION INVOLVES A NEUTRAL THIRD
2629PERSON WHO CONSIDERS THE LAW AND FACTS PRESENTED BY
2630THE PARTIES AND RENDERS A WRITTEN DECISION CALLED AN
2631"ARBITRATION AWARD." PURSUANT TO SECTION 720.507,
2632FLORIDA STATUTES, THE ARBITRATION AWARD SHALL BE FINAL
2633UNLESS A LAWSUIT IS FILED IN A COURT OF COMPETENT
2634JURISDICTION FOR THE JUDICIAL CIRCUIT IN WHICH THE
2635PARCEL(S) GOVERNED BY THE HOMEOWNERS' ASSOCIATION
2636IS/ARE LOCATED WITHIN 30 DAYS AFTER THE DATE OF THE
2637ARBITRATION AWARD.
2638
2639IF A SETTLEMENT AGREEMENT IS REACHED BEFORE THE
2640ARBITRATION AWARD, IT SHALL BE REDUCED TO WRITING AND
2641BECOME A BINDING AND ENFORCEABLE CONTRACT OF THE
2642PARTIES. A RESOLUTION OF ONE OR MORE DISPUTES IN THIS
2643FASHION AVOIDS THE NEED TO ARBITRATE THESE ISSUES OR
2644TO LITIGATE THESE ISSUES IN COURT AND SHALL BE THE
2645SAME AS A SETTLEMENT AGREEMENT REACHED BETWEEN THE
2646PARTIES UNDER SECTION 720.505, FLORIDA STATUTES. THE
2647FAILURE OF A PARTY TO PARTICIPATE IN THE ARBITRATION
2648PROCESS MAY RESULT IN THE ARBITRATOR ISSUING AN
2649ARBITRATION AWARD BY DEFAULT IN THE ARBITRATION. IF
2650YOU HAVE FAILED OR REFUSED TO PARTICIPATE IN THE
2651ENTIRE ARBITRATION PROCESS, YOU WILL NOT BE ENTITLED
2652TO RECOVER ATTORNEY'S FEES IF YOU PREVAIL IN A
2653SUBSEQUENT COURT PROCEEDING INVOLVING THE SAME
2654DISPUTE.
2655
2656THE AGGRIEVED PARTY HAS SELECTED AT LEAST FIVE
2657ARBITRATORS WHO THE AGGRIEVED PARTY BELIEVES TO BE
2658NEUTRAL AND QUALIFIED TO ARBITRATE THE DISPUTE. YOU
2659HAVE THE RIGHT TO SELECT ANY ONE OF THE ARBITRATORS.
2660THE FACT THAT ONE PARTY MAY BE FAMILIAR WITH ONE OR
2661MORE OF THE LISTED ARBITRATORS DOES NOT MEAN THAT THE
2662ARBITRATOR CANNOT ACT AS A NEUTRAL AND IMPARTIAL
2663ARBITRATOR. ANY ARBITRATOR WHO CANNOT ACT IN THIS
2664CAPACITY IS REQUIRED ETHICALLY TO DECLINE TO ACCEPT
2665ENGAGEMENT. THE NAMES OF THE FIVE ARBITRATORS THAT THE
2666AGGRIEVED PARTY HAS CHOSEN FROM WHICH YOU MAY SELECT
2667ONE, AND THEIR CURRENT ADDRESSES, TELEPHONE NUMBERS,
2668AND HOURLY RATES, ARE AS FOLLOWS:
2669
2670(LIST THE NAMES, ADDRESSES, TELEPHONE NUMBERS, AND
2671HOURLY RATES OF AT LEAST FIVE ARBITRATORS.)
2672
2673YOU MAY CONTACT THE OFFICES OF THESE ARBITRATORS TO
2674CONFIRM THAT THE LISTED ARBITRATORS WILL BE NEUTRAL
2675AND WILL NOT SHOW ANY FAVORITISM TOWARD EITHER PARTY.
2676
2677UNLESS OTHERWISE AGREED TO BY THE PARTIES, PART IV OF
2678CHAPTER 720, FLORIDA STATUTES, REQUIRES THAT THE
2679PARTIES SHARE THE COSTS OF PRESUIT ARBITRATION
2680EQUALLY, INCLUDING THE FEE CHARGED BY THE ARBITRATOR.
2681THE PARTIES SHALL BE RESPONSIBLE FOR THEIR OWN
2682ATTORNEY'S FEES IF THEY CHOOSE TO EMPLOY AN ATTORNEY
2683IN CONNECTION WITH THE ARBITRATION. HOWEVER, USE OF AN
2684ATTORNEY TO REPRESENT YOU FOR THE ARBITRATION IS NOT
2685REQUIRED. THE ARBITRATOR SELECTED MAY REQUIRE THE
2686ADVANCE PAYMENT OF SOME OR ALL OF THE ANTICIPATED
2687FEES. THE AGGRIEVED PARTY HEREBY AGREES TO PAY OR
2688PREPAY ONE-HALF OF THE SELECTED ARBITRATOR'S ESTIMATED
2689FEES AND TO FORWARD THIS AMOUNT OR SUCH OTHER
2690REASONABLE ADVANCE DEPOSITS AS THE ARBITRATOR WHO IS
2691SELECTED REQUIRES FOR THIS PURPOSE. ANY FUNDS
2692DEPOSITED WILL BE RETURNED TO YOU IF THESE FUNDS ARE
2693IN EXCESS OF YOUR SHARE OF THE FEES INCURRED.
2694
2695PLEASE SIGN THE AGREEMENT TO ARBITRATE BELOW AND
2696CLEARLY INDICATE THE NAME OF THE ARBITRATOR WHO IS
2697ACCEPTABLE TO YOU FROM THE NAMES LISTED BY THE
2698AGGRIEVED PARTY.
2699
2700YOU MUST RESPOND IN WRITING TO THIS STATUTORY NOTICE
2701WITHIN 20 DAYS AFTER THE DATE THAT THE NOTICE OF
2702PRESUIT ARBITRATION WAS PERSONALLY SERVED ON YOU OR
2703THE POSTMARKED DATE THAT THIS NOTICE OF PRESUIT
2704ARBITRATION WAS SENT TO YOU BY CERTIFIED MAIL. YOU
2705MUST ALSO PROVIDE A LIST OF AT LEAST THREE DATES AND
2706TIMES IN WHICH YOU ARE AVAILABLE TO PARTICIPATE IN THE
2707ARBITRATION THAT ARE WITHIN 90 DAYS AFTER THE DATE YOU
2708WERE PERSONALLY SERVED OR WITHIN 90 DAYS AFTER THE
2709POSTMARKED DATE OF THE CERTIFIED MAILING OF THIS
2710STATUTORY NOTICE OF PRESUIT ARBITRATION. A COPY OF
2711THIS NOTICE AND YOUR RESPONSE WILL BE PROVIDED BY THE
2712AGGRIEVED PARTY TO THE ARBITRATOR SELECTED, AND THE
2713ARBITRATOR WILL SCHEDULE A MUTUALLY CONVENIENT TIME
2714AND PLACE FOR THE ARBITRATION CONFERENCE TO BE HELD.
2715IF YOU DO NOT PROVIDE A LIST OF AVAILABLE DATES AND
2716TIMES, THE ARBITRATOR IS AUTHORIZED TO SCHEDULE AN
2717ARBITRATION CONFERENCE WITHOUT TAKING YOUR SCHEDULE
2718AND CONVENIENCE INTO CONSIDERATION. THE ARBITRATION
2719CONFERENCE MUST BE HELD ON THE SCHEDULED DATE, OR ANY
2720RESCHEDULED DATE APPROVED BY THE ARBITRATOR. IN NO
2721EVENT SHALL THE ARBITRATION CONFERENCE BE LATER THAN
272290 DAYS AFTER NOTICE OF THE PRESUIT ARBITRATION WAS
2723FIRST SERVED, UNLESS ALL PARTIES MUTUALLY AGREE IN
2724WRITING OTHERWISE. IF THE ARBITRATION IS NOT COMPLETED
2725WITHIN THE REQUIRED TIME LIMITS, THE ARBITRATOR SHALL
2726ISSUE AN ARBITRATION AWARD, UNLESS THE HEARING IS
2727EXTENDED BY MUTUAL WRITTEN AGREEMENT OF THE PARTIES
2728AND APPROVED BY THE ARBITRATOR. IN THE EVENT THAT YOU
2729FAIL TO RESPOND WITHIN 20 DAYS AFTER THE DATE YOU WERE
2730SERVED WITH A COPY OF THIS NOTICE, FAIL TO PROVIDE THE
2731ARBITRATOR WITH DATES AND TIMES IN WHICH YOU ARE
2732AVAILABLE FOR THE ARBITRATION CONFERENCE, FAIL TO
2733AGREE TO ONE OF THE ARBITRATORS THAT THE AGGRIEVED
2734PARTY HAS NAMED, FAIL TO PAY OR PREPAY TO THE
2735ARBITRATOR ONE-HALF OF THE COSTS INVOLVED AS REQUIRED,
2736OR FAIL TO APPEAR AND PARTICIPATE AT THE SCHEDULED
2737ARBITRATION CONFERENCE, THE AGGRIEVED PARTY MAY
2738REQUEST THE ARBITRATOR TO ISSUE AN ARBITRATION AWARD.
2739IN ANY SUBSEQUENT COURT ACTION, THE AGGRIEVED PARTY
2740SHALL BE ENTITLED TO RECOVER AN AWARD OF REASONABLE
2741ATTORNEY'S FEES AND COSTS, INCLUDING ANY FEES PAID TO
2742THE ARBITRATOR, INCURRED IN OBTAINING AN ARBITRATION
2743AWARD PURSUANT TO SECTION 720.507, FLORIDA STATUTES.
2744
2745PLEASE GIVE THIS MATTER YOUR IMMEDIATE ATTENTION. BY
2746LAW, YOUR RESPONSE MUST BE POSTMARKED AND MAILED BY
2747CERTIFIED, FIRST-CLASS MAIL, RETURN RECEIPT REQUESTED,
2748TO THE ADDRESS SHOWN ON THIS NOTICE OF PRESUIT
2749ARBITRATION.
2750
2751_________________________
2752SIGNATURE OF AGGRIEVED PARTY
2753
2754______________________
2755PRINTED NAME OF AGGRIEVED PARTY
2756
2757RESPONDING PARTY: YOUR SIGNATURE BELOW INDICATES YOUR
2758ACCEPTANCE OF THE AGREEMENT TO ARBITRATE.
2759
2760
AGREEMENT TO ARBITRATE
2761
2762THE UNDERSIGNED HEREBY AGREES TO PARTICIPATE IN
2763PRESUIT ARBITRATION AND AGREES TO ATTEND AN
2764ARBITRATION CONDUCTED BY THE FOLLOWING ARBITRATOR
2765LISTED BELOW AS SOMEONE WHO WOULD BE ACCEPTABLE TO
2766ARBITRATE THIS DISPUTE:
2767
2768(IN YOUR RESPONSE, SELECT THE NAME OF ONE ARBITRATOR
2769THAT IS ACCEPTABLE TO YOU FROM THOSE ARBITRATORS
2770LISTED BY THE AGGRIEVED PARTY.)
2771
2772THE UNDERSIGNED HEREBY REPRESENTS THAT HE OR SHE IS
2773AVAILABLE AND ABLE TO ATTEND AND PARTICIPATE IN THE
2774PRESUIT ARBITRATION CONFERENCE AT THE FOLLOWING DATES
2775AND TIMES:
2776
2777(LIST ALL AVAILABLE DATES AND TIMES, OF WHICH THERE
2778MUST BE AT LEAST THREE, WITHIN 90 DAYS AFTER THE DATE
2779ON WHICH YOU WERE SERVED, EITHER BY PROCESS SERVER OR
2780BY CERTIFIED MAIL, WITH THE NOTICE OF PRESUIT
2781ARBITRATION.)
2782
2783I/WE FURTHER AGREE TO PAY OR PREPAY ONE-HALF OF THE
2784ARBITRATOR'S FEES AND TO FORWARD SUCH ADVANCE DEPOSITS
2785AS THE ARBITRATOR MAY REQUIRE FOR THIS PURPOSE.
2786
2787______________________________
2788SIGNATURE OF RESPONDING PARTY #1
2789______________________________
2790TELEPHONE CONTACT INFORMATION
2791
2792______________________________
2793SIGNATURE AND TELEPHONE CONTACT INFORMATION OF
2794RESPONDING PARTY #2, IF APPLICABLE. IF THE PROPERTY IS
2795OWNED BY MORE THAN ONE PERSON, ALL OWNERS MUST SIGN,
2796OR A PERSON MAY SIGN WHO IS ACTING UNDER AUTHORITY OF
2797A VALID POWER OF ATTORNEY GRANTED BY AN OWNER.
2798
2799     (2)(a)  Service of the notice of presuit arbitration shall
2800be effected either by personal service, as provided in chapter
280148, or by certified mail, return receipt requested, in a letter
2802in substantial conformity with the form provided in subsection
2803(1), with an additional copy being sent by regular first-class
2804mail, to the address of the responding party as it last appears
2805on the books and records of the association or, if not
2806available, the last address as it appears on the official
2807records of the county property appraiser for the county in which
2808the property is situated that is subject to the association
2809documents. The responding party has 20 days after the postmarked
2810date of the certified mailing of the statutory notice of presuit
2811arbitration or the date the responding party is personally
2812served with the statutory notice of presuit arbitration to serve
2813a written response to the aggrieved party. The response shall be
2814served by certified mail, return receipt requested, with an
2815additional copy being sent by regular first-class mail, to the
2816address shown on the statutory notice of presuit arbitration.
2817The postmarked date on the envelope of the response shall
2818constitute the date the response was served.
2819     (b)  The parties shall share the costs of presuit
2820arbitration equally, including the fee charged by the
2821arbitrator, if any, unless the parties agree otherwise, and the
2822arbitrator may require advance payment of his or her reasonable
2823fees and costs. Each party shall be responsible for that party's
2824own attorney's fees if a party chooses to be represented by an
2825attorney for the arbitration proceedings.
2826     (c)1.  The party responding to the aggrieved party must
2827sign the agreement to arbitrate included in the notice of
2828presuit arbitration and clearly indicate the name of the
2829arbitrator who is acceptable of those arbitrators listed by the
2830aggrieved party. The responding party must provide a list of at
2831least three dates and times in which the responding party is
2832available to participate in the arbitration conference within 90
2833days after the date the responding party was served with the
2834statutory notice of presuit arbitration.
2835     2.  The arbitrator must schedule the arbitration conference
2836at a mutually convenient time and place, but if the responding
2837party does not provide a list of available dates and times, the
2838arbitrator is authorized to schedule an arbitration conference
2839without taking the responding party's schedule and convenience
2840into consideration. Within 10 days after the designation of the
2841arbitrator, the arbitrator shall notify the parties in writing
2842of the date, time, and place of the arbitration conference.
2843     3.  The arbitration conference must be held on the
2844scheduled date and may be rescheduled if approved by the
2845arbitrator. However, in no event shall the arbitration hearing
2846be later than 90 days after the notice of presuit arbitration
2847was first served, unless all parties mutually agree in writing
2848otherwise. If the arbitration hearing is not completed within
2849the required time limits, the arbitrator may issue an
2850arbitration award unless the time for the hearing is extended as
2851provided herein.
2852     4.  If the responding party fails to respond within 20 days
2853after the date of statutory notice of presuit arbitration, fails
2854to agree to at least one of the arbitrators that have been
2855listed by the aggrieved party in the presuit notice of
2856arbitration, fails to pay or prepay to the arbitrator one-half
2857of the costs involved, or fails to appear and participate at the
2858scheduled arbitration, the aggrieved party is authorized to
2859proceed with a request that the arbitrator issue an arbitration
2860award.
2861     (d)1.  The failure of any party to respond to the statutory
2862notice of presuit arbitration within 20 days, the failure to
2863select one of the arbitrators listed by the aggrieved party, the
2864failure to provide a listing of dates and times in which the
2865responding party is available to participate in the arbitration
2866conference within 90 days after the date of the responding party
2867being served with the statutory notice of presuit arbitration,
2868the failure to make payment of fees and costs as required within
2869the time established by the arbitrator, or the failure to appear
2870for an arbitration conference without the approval of the
2871arbitrator shall entitle the other party to request the
2872arbitrator to enter an arbitration award, including an award of
2873the reasonable costs and attorney's fees associated with the
2874arbitration.
2875     2.  Persons who fail or refuse to participate in the entire
2876arbitration process may not recover attorney's fees and costs in
2877any subsequent litigation proceeding relating to the same
2878dispute involving the same parties.
2879     (3)(a)  In an arbitration proceeding, the arbitrator may
2880not consider any unsuccessful mediation of the dispute.
2881     (b)  An arbitrator in a proceeding initiated pursuant to
2882this part may shorten the time for discovery or otherwise limit
2883discovery in a manner consistent with the policy goals of this
2884part to reduce the time and expense of litigating homeowners'
2885association disputes initiated pursuant to this chapter and to
2886promote an expeditious alternative dispute resolution procedure
2887for parties to such actions.
2888     (4)  At the request of any party to the arbitration, the
2889arbitrator may issue subpoenas for the attendance of witnesses
2890and the production of books, records, documents, and other
2891evidence, and any party on whose behalf a subpoena is issued may
2892apply to the court for orders compelling such attendance and
2893production. Subpoenas shall be served and are enforceable in the
2894manner provided by the Florida Rules of Civil Procedure.
2895Discovery may, at the discretion of the arbitrator, be permitted
2896in the manner provided by the Florida Rules of Civil Procedure.
2897     (5)  The final arbitration award shall be sent to the
2898parties in writing no later than 30 days after the date of the
2899arbitration hearing, absent extraordinary circumstances
2900necessitating a later filing the reasons for which shall be
2901stated in the final award if filed more than 30 days after the
2902date of the final session of the arbitration conference. An
2903agreed arbitration award is final in those disputes in which the
2904parties have mutually agreed to be bound. An arbitration award
2905decided by the arbitrator is final unless a lawsuit seeking a
2906trial de novo is filed in a court of competent jurisdiction
2907within 30 days after the date of the arbitration award. The
2908right to file for a trial de novo entitles the parties to file a
2909complaint in the appropriate trial court for a judicial
2910resolution of the dispute. The prevailing party in an
2911arbitration proceeding shall be awarded the costs of the
2912arbitration and reasonable attorney's fees in an amount
2913determined by the arbitrator.
2914     (6)  The party filing a motion for a trial de novo shall be
2915assessed the other party's arbitration costs, court costs, and
2916other reasonable costs, including attorney's fees, investigation
2917expenses, and expenses for expert or other testimony or evidence
2918incurred after the arbitration hearing, if the judgment upon the
2919trial de novo is not more favorable than the final arbitration
2920award.
2921     720.508  Rules of procedure.-
2922     (1)  Presuit mediation and presuit arbitration proceedings
2923under this part must be conducted in accordance with the
2924applicable Florida Rules of Civil Procedure and rules governing
2925mediations and arbitrations under chapter 44, except that this
2926part shall be controlling to the extent of any conflict with
2927other applicable rules or statutes. The arbitrator may shorten
2928any applicable time period and otherwise limit the scope of
2929discovery on request of the parties or within the discretion of
2930the arbitrator exercised consistent with the purpose and
2931objective of reducing the expense and expeditiously concluding
2932proceedings under this part.
2933     (2)  Presuit mediation proceedings under s. 720.505 are
2934privileged and confidential to the same extent as court-ordered
2935mediation under chapter 44. An arbitrator or judge may not
2936consider any information or evidence arising from the presuit
2937mediation proceeding except in a proceeding to impose sanctions
2938for failure to attend a presuit mediation session or to enforce
2939a mediated settlement agreement.
2940     (3)  Persons who are not parties to the dispute may not
2941attend the presuit mediation conference without consent of all
2942parties, with the exception of counsel for the parties and a
2943corporate representative designated by the association. Presuit
2944mediations under this part are not a board meeting for purposes
2945of notice and participation set forth in this chapter.
2946     (4)  Attendance at a mediation conference by the board of
2947directors shall not require notice or participation by nonboard
2948members as otherwise required by this chapter for meetings of
2949the board.
2950     (5)  Settlement agreements resulting from a mediation or
2951arbitration proceeding do not have precedential value in
2952proceedings involving parties other than those participating in
2953the mediation or arbitration.
2954     (6)  Arbitration awards by an arbitrator shall have
2955precedential value in other proceedings involving the same
2956association or with respect to the same parcel owner.
2957     720.509  Mediators and arbitrators; qualifications.-A
2958person is authorized to conduct mediation or arbitration under
2959this part if he or she has been certified as a circuit court
2960civil mediator under the requirements adopted pursuant to s.
296144.106, is a member in good standing with The Florida Bar, and
2962otherwise meets all other requirements imposed by chapter 44.
2963     720.510  Enforcement of mediation agreement or arbitration
2964award.-
2965     (1)  A mediation settlement may be enforced through the
2966county or circuit court, as applicable, and any costs and
2967attorney's fees incurred in the enforcement of a settlement
2968agreement reached at mediation shall be awarded to the
2969prevailing party in any enforcement action.
2970     (2)  Any party to an arbitration proceeding may enforce an
2971arbitration award by filing a petition in a court of competent
2972jurisdiction in which the homeowners' association is located.
2973The prevailing party in such proceeding shall be awarded
2974reasonable attorney's fees and costs incurred in such
2975proceeding.
2976     (3)  If a complaint is filed seeking a trial de novo, the
2977arbitration award shall be stayed and a petition to enforce the
2978award may not be granted. Such award, however, shall be
2979admissible in the court proceeding seeking a trial de novo.
2980     Section 25.  All new residential construction in any deed-
2981restricted community that requires mandatory membership in the
2982association under chapter 718, chapter 719, or chapter 720,
2983Florida Statutes, must comply with the provisions of Pub. L. No.
2984110-140, Title XIV, ss. 1402 to 1406, 15 U.S.C. ss. 8001-8005.
2985     Section 26.  This act shall take effect July 1, 2010.


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