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Senate Bill 2984

Senate Bill sb2984er

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  1                                 

  2         An act relating to condominium and community

  3         associations; amending s. 718.110, F.S.;

  4         providing for the applicability of amendments

  5         restricting certain rights of unit owners;

  6         amending s. 718.111, F.S.; providing immunity

  7         from liability for certain information provided

  8         by associations to prospective purchasers or

  9         lienholders under certain circumstances;

10         amending s. 768.1325, F.S.; providing immunity

11         from civil liability for community associations

12         that provide automated defibrillator devices

13         under certain circumstances; prohibiting

14         insurers from requiring associations to

15         purchase medical malpractice coverage as a

16         condition of issuing other coverage;

17         prohibiting insurers from excluding from

18         coverage under a general liability policy

19         damages resulting from the use of an automated

20         external defibrillator device; amending ss.

21         718.112 and 719.1055, F.S.; revising

22         notification and voting procedures with respect

23         to any vote to forego retrofitting of the

24         common areas of condominiums and cooperatives

25         with fire sprinkler systems; amending s.

26         718.503, F.S.; requiring unit owners who are

27         not developers to provide a specific question

28         and answer disclosure document to certain

29         prospective purchasers; creating s. 720.403,

30         F.S.; providing legislative intent relating to

31         the revival of governance of a community;


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 1         creating s. 720.404, F.S.; providing

 2         eligibility to revive governance documents;

 3         specifying prerequisites to reviving governance

 4         documents; creating s. 720.405, F.S.; requiring

 5         the formation of an organizing committee;

 6         providing for membership; providing duties and

 7         responsibilities of the organizing committee;

 8         directing the organizing committee to prepare

 9         certain documents; providing for the contents

10         of the documents; providing for a vote of the

11         eligible parcel owners; creating s. 720.406,

12         F.S.; directing the organizing committee to

13         file certain documents with the Department of

14         Community Affairs; specifies the content of the

15         submission to the department; requiring the

16         department to approve or disapprove the request

17         to revive the governance documents within a

18         specified time period; creating s. 720.407,

19         F.S.; requiring the organizing committee to

20         file and record certain documents within a

21         specified time period; directing the organizing

22         committee to give all affected parcel owners a

23         copy of the documents filed and recorded;

24         providing for judicial determination of the

25         effects of revived covenants on parcels;

26         providing for effects of such a judicial

27         determination; amending s. 718.103, F.S.;

28         providing that certain governmental entities

29         are not developers for certain purposes;

30         amending s. 720.301, F.S.; defining the terms

31         "department," "division," and "member";


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 1         amending s. 720.302, F.S.; prescribing a

 2         legislative purpose of providing alternative

 3         dispute resolution procedures for disputes

 4         involving elections and recalls; providing acts

 5         that constitute crimes; providing penalties;

 6         amending s. 720.303, F.S.; prescribing the

 7         right of an association to enforce deed

 8         restrictions; prescribing rights of members and

 9         parcel owners to attend and address association

10         board meetings and to have items placed on an

11         agenda; prescribing additional requirements for

12         notice of meetings; providing for additional

13         materials to be maintained as records;

14         providing additional requirements and

15         limitations with respect to inspecting and

16         copying records; providing requirements with

17         respect to financial statements; providing

18         procedures for recall of directors; amending s.

19         720.304, F.S.; prescribing owners' rights with

20         respect to flag display; prohibiting certain

21         lawsuits against parcel owners; providing

22         penalties; allowing a parcel owner to construct

23         a ramp for a parcel resident who has a medical

24         need for a ramp; providing conditions; allowing

25         the display of a security-services sign;

26         amending s. 720.305, F.S.; providing that a

27         fine by an association cannot become a lien

28         against a parcel; providing for attorney's fees

29         in actions to recover fines; creating s.

30         720.3055, F.S.; prescribing requirements for

31         contracts for products and services; amending


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 1         s. 720.306, F.S.; providing for notice of and

 2         right to speak at member meetings; requiring

 3         election disputes between a member and an

 4         association to be submitted to mandatory

 5         binding arbitration; amending s. 720.311, F.S.;

 6         expanding requirements and guidelines with

 7         respect to alternative dispute resolution;

 8         providing requirements for mediation and

 9         arbitration; providing for training and

10         education programs; transferring, renumbering,

11         and amending s. 689.26, F.S.; modifying the

12         disclosure form that a prospective purchaser

13         must receive before a contract for sale;

14         providing that certain contracts are voidable

15         for a specified period; requiring that a

16         purchaser provide written notice of

17         cancellation; transferring and renumbering s.

18         689.265, F.S., relating to required financial

19         reports of certain residential subdivision

20         developers; amending s. 498.025, F.S., relating

21         to the disposition of subdivided lands;

22         conforming cross-references; creating s.

23         720.402, F.S.; providing remedies for

24         publication of false and misleading

25         information; amending s. 34.01, F.S.; providing

26         jurisdiction of disputes involving homeowners'

27         associations; amending ss. 316.00825, 558.002,

28         F.S.; conforming cross-references; providing

29         for internal organization of ch. 720, F.S.;

30         providing for severability; amending s.

31         190.012, F.S.; providing for the enforcement of


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 1         deed restrictions in certain circumstances;

 2         amending s. 190.046, F.S.; providing for

 3         additional dissolution procedures; amending s.

 4         190.006, F.S.; specifying procedures for

 5         selecting a chair at the initial landowners'

 6         meeting; specifying requirements for proxy

 7         voting; requiring notice of landowners'

 8         elections; specifying the terms of certain

 9         supervisors; providing for nonpartisan

10         elections; specifying the time that resident

11         supervisors assume office; authorizing the

12         supervisor of elections to designate seat

13         numbers for resident supervisors of the board;

14         providing procedures for filing qualifying

15         papers; allowing candidates the option of

16         paying a filing fee to qualify for the

17         election; specifying payment requirements;

18         specifying the number of petition signatures

19         required to qualify for the election; requiring

20         the county canvassing board to certify the

21         results of resident elections; providing

22         effective dates.

23  

24  Be It Enacted by the Legislature of the State of Florida:

25  

26         Section 1.  Subsection (13) is added to section

27  718.110, Florida Statutes, to read:

28         718.110  Amendment of declaration; correction of error

29  or omission in declaration by circuit court.--

30         (13)  Any amendment restricting unit owners' rights

31  relating to the rental of units applies only to unit owners


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 1  who consent to the amendment and unit owners who purchase

 2  their units after the effective date of that amendment.

 3         Section 2.  Paragraph (e) of subsection (12) of section

 4  718.111, Florida Statutes, is amended to read:

 5         718.111  The association.--

 6         (12)  OFFICIAL RECORDS.--

 7         (e)1.  The association or its authorized agent is shall

 8  not be required to provide a prospective purchaser or

 9  lienholder with information about the condominium or the

10  association other than information or documents required by

11  this chapter to be made available or disclosed. The

12  association or its authorized agent may shall be entitled to

13  charge a reasonable fee to the prospective purchaser,

14  lienholder, or the current unit owner for its time in

15  providing good faith responses to requests for information by

16  or on behalf of a prospective purchaser or lienholder, other

17  than that required by law, if the provided that such fee does

18  shall not exceed $150 plus the reasonable cost of photocopying

19  and any attorney's fees incurred by the association in

20  connection with the association's response.

21         2.  An association and its authorized agent are not

22  liable for providing such information in good faith pursuant

23  to a written request if the person providing the information

24  includes a written statement in substantially the following

25  form: "The responses herein are made in good faith and to the

26  best of my ability as to their accuracy."

27         Section 3.  Subsection (3) of section 768.1325, Florida

28  Statutes, is amended, and subsection (6) is added to that

29  section, to read:

30         768.1325  Cardiac Arrest Survival Act; immunity from

31  civil liability.--


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 1         (3)  Notwithstanding any other provision of law to the

 2  contrary, and except as provided in subsection (4), any person

 3  who uses or attempts to use an automated external

 4  defibrillator device on a victim of a perceived medical

 5  emergency, without objection of the victim of the perceived

 6  medical emergency, is immune from civil liability for any harm

 7  resulting from the use or attempted use of such device.  In

 8  addition, any person who acquired the device, including, but

 9  not limited to, a community association organized under

10  chapter 617, chapter 718, chapter 719, chapter 720, chapter

11  721, or chapter 723, is immune from such liability, if the

12  harm was not due to the failure of such acquirer of the device

13  to:

14         (a)  Notify the local emergency medical services

15  medical director of the most recent placement of the device

16  within a reasonable period of time after the device was

17  placed;

18         (b)  Properly maintain and test the device; or

19         (c)  Provide appropriate training in the use of the

20  device to an employee or agent of the acquirer when the

21  employee or agent was the person who used the device on the

22  victim, except that such requirement of training does not

23  apply if:

24         1.  The employee or agent was not an employee or agent

25  who would have been reasonably expected to use the device; or

26         2.  The period of time elapsing between the engagement

27  of the person as an employee or agent and the occurrence of

28  the harm, or between the acquisition of the device and the

29  occurrence of the harm in any case in which the device was

30  acquired after engagement of the employee or agent, was not a

31  reasonably sufficient period in which to provide the training.


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 1         (6)  An insurer may not require an acquirer of an

 2  automated external defibrillator device which is a community

 3  association organized under chapter 617, chapter 718, chapter

 4  719, chapter 720, chapter 721, or chapter 723 to purchase

 5  medical malpractice liability coverage as a condition of

 6  issuing any other coverage carried by the association, and an

 7  insurer may not exclude damages resulting from the use of an

 8  automated external defibrillator device from coverage under a

 9  general liability policy issued to an association.

10         Section 4.  Paragraphs (f) and (l) of subsection (2) of

11  section 718.112, Florida Statutes, are amended to read:

12         718.112  Bylaws.--

13         (2)  REQUIRED PROVISIONS.--The bylaws shall provide for

14  the following and, if they do not do so, shall be deemed to

15  include the following:

16         (f)  Annual budget.--

17         1.  The proposed annual budget of common expenses shall

18  be detailed and shall show the amounts budgeted by accounts

19  and expense classifications, including, if applicable, but not

20  limited to, those expenses listed in s. 718.504(21). A

21  multicondominium association shall adopt a separate budget of

22  common expenses for each condominium the association operates

23  and shall adopt a separate budget of common expenses for the

24  association. In addition, if the association maintains limited

25  common elements with the cost to be shared only by those

26  entitled to use the limited common elements as provided for in

27  s. 718.113(1), the budget or a schedule attached thereto shall

28  show amounts budgeted therefor. If, after turnover of control

29  of the association to the unit owners, any of the expenses

30  listed in s. 718.504(21) are not applicable, they need not be

31  listed.


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 1         2.  In addition to annual operating expenses, the

 2  budget shall include reserve accounts for capital expenditures

 3  and deferred maintenance. These accounts shall include, but

 4  are not limited to, roof replacement, building painting, and

 5  pavement resurfacing, regardless of the amount of deferred

 6  maintenance expense or replacement cost, and for any other

 7  item for which the deferred maintenance expense or replacement

 8  cost exceeds $10,000. The amount to be reserved shall be

 9  computed by means of a formula which is based upon estimated

10  remaining useful life and estimated replacement cost or

11  deferred maintenance expense of each reserve item.  The

12  association may adjust replacement reserve assessments

13  annually to take into account any changes in estimates or

14  extension of the useful life of a reserve item caused by

15  deferred maintenance. This subsection does not apply to an

16  adopted budget in which the members of an association have

17  determined, by a majority vote at a duly called meeting of the

18  association, to provide no reserves or less reserves than

19  required by this subsection. However, prior to turnover of

20  control of an association by a developer to unit owners other

21  than a developer pursuant to s. 718.301, the developer may

22  vote to waive the reserves or reduce the funding of reserves

23  for the first 2 fiscal years of the association's operation,

24  beginning with the fiscal year in which the initial

25  declaration is recorded, after which time reserves may be

26  waived or reduced only upon the vote of a majority of all

27  nondeveloper voting interests voting in person or by limited

28  proxy at a duly called meeting of the association. If a

29  meeting of the unit owners has been called to determine

30  whether to waive or reduce the funding of reserves, and no

31  such result is achieved or a quorum is not attained, the


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 1  reserves as included in the budget shall go into effect. After

 2  the turnover, the developer may vote its voting interest to

 3  waive or reduce the funding of reserves.

 4         3.  Reserve funds and any interest accruing thereon

 5  shall remain in the reserve account or accounts, and shall be

 6  used only for authorized reserve expenditures unless their use

 7  for other purposes is approved in advance by a majority vote

 8  at a duly called meeting of the association. Prior to turnover

 9  of control of an association by a developer to unit owners

10  other than the developer pursuant to s. 718.301, the

11  developer-controlled association shall not vote to use

12  reserves for purposes other than that for which they were

13  intended without the approval of a majority of all

14  nondeveloper voting interests, voting in person or by limited

15  proxy at a duly called meeting of the association.

16         4.  In a multicondominium association, The only voting

17  interests which are eligible to vote on questions that involve

18  waiving or reducing the funding of reserves, or using existing

19  reserve funds for purposes other than purposes for which the

20  reserves were intended, are the voting interests of the units

21  subject to assessment to fund the reserves in question.

22         (l)  Certificate of compliance.--There shall be a

23  provision that a certificate of compliance from a licensed

24  electrical contractor or electrician may be accepted by the

25  association's board as evidence of compliance of the

26  condominium units with the applicable fire and life safety

27  code. Notwithstanding the provisions of chapter 633 or of any

28  other code, statute, ordinance, administrative rule, or

29  regulation, or any interpretation of the foregoing, an

30  association, condominium, or unit owner is not obligated to

31  retrofit the common elements or units of a residential


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 1  condominium with a fire sprinkler system or other engineered

 2  lifesafety system in a building that has been certified for

 3  occupancy by the applicable governmental entity, if the unit

 4  owners have voted to forego such retrofitting and engineered

 5  lifesafety system by the affirmative vote of two-thirds of all

 6  voting interests in the affected condominium. However, a

 7  condominium association may not vote to forego the

 8  retrofitting with a fire sprinkler system of common areas in a

 9  high-rise building. For purposes of this subsection, the term

10  "high-rise building" means a building that is greater than 75

11  feet in height where the building height is measured from the

12  lowest level of fire department access to the floor of the

13  highest occupiable story. For purposes of this subsection, the

14  term "common areas" means any enclosed hallway, corridor,

15  lobby, stairwell, or entryway. In no event shall the local

16  authority having jurisdiction require completion of

17  retrofitting of common areas with a sprinkler system before

18  the end of 2014.

19         1.  A vote to forego retrofitting may not be obtained

20  by general proxy or limited proxy or by a ballot, but shall be

21  obtained by a vote personally cast at a duly called membership

22  meeting, or by execution of a written consent by the member,

23  and shall be effective upon the recording of a certificate

24  attesting to such vote in the public records of the county

25  where the condominium is located. The association shall mail,

26  hand deliver, or electronically transmit to provide each unit

27  owner written notice at least 14 days prior to such membership

28  meeting in which of the vote to forego retrofitting of the

29  required fire sprinkler system is to take place, in at least

30  16-point bold type, by certified mail, within 20 days after

31  the association's vote. Within 30 days after the association's


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 1  opt-out vote, notice of the results of the opt-out vote shall

 2  be mailed, hand delivered, or electronically transmitted to

 3  all unit owners. Evidence of compliance with this 30-day

 4  notice shall be made by an affidavit executed by the person

 5  providing the notice and filed among the official records of

 6  the association. After such notice is provided to each owner,

 7  a copy of such notice shall be provided by the current owner

 8  to a new owner prior to closing and shall be provided by a

 9  unit owner to a renter prior to signing a lease.

10         2.  As part of the information collected annually from

11  condominiums, the division shall require condominium

12  associations to report the membership vote and recording of a

13  certificate under this subsection and, if retrofitting has

14  been undertaken, the per-unit cost of such work. The division

15  shall annually report to the Division of State Fire Marshal of

16  the Department of Financial Services the number of

17  condominiums that have elected to forego retrofitting.

18         Section 5.  Paragraph (a) of subsection (5) of section

19  719.1055, Florida Statutes, is amended to read:

20         719.1055  Amendment of cooperative documents;

21  alteration and acquisition of property.--

22         (5)  Notwithstanding the provisions of chapter 633 or

23  of any other code, statute, ordinance, administrative rule, or

24  regulation, or any interpretation of the foregoing, a

25  cooperative or unit owner is not obligated to retrofit the

26  common elements or units of a residential cooperative with a

27  fire sprinkler system or other engineered life safety system

28  in a building that has been certified for occupancy by the

29  applicable governmental entity, if the unit owners have voted

30  to forego such retrofitting and engineered life safety system

31  by the affirmative vote of two-thirds of all voting interests


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 1  in the affected cooperative. However, a cooperative may not

 2  forego the retrofitting with a fire sprinkler system of common

 3  areas in a high-rise building. For purposes of this

 4  subsection, the term "high-rise building" means a building

 5  that is greater than 75 feet in height where the building

 6  height is measured from the lowest level of fire department

 7  access to the floor of the highest occupiable story. For

 8  purposes of this subsection, the term "common areas" means any

 9  enclosed hallway, corridor, lobby, stairwell, or entryway. In

10  no event shall the local authority having jurisdiction require

11  completion of retrofitting of common areas with a sprinkler

12  system before the end of 2014.

13         (a)  A vote to forego retrofitting may not be obtained

14  by general proxy or limited proxy or by a ballot, but shall be

15  obtained by a vote personally cast at a duly called membership

16  meeting, or by execution of a written consent by the member,

17  and shall be effective upon the recording of a certificate

18  attesting to such vote in the public records of the county

19  where the cooperative is located. The association shall mail,

20  hand deliver, or electronically transmit to provide each unit

21  owner written notice at least 14 days prior to such membership

22  meeting in which of the vote to forego retrofitting of the

23  required fire sprinkler system is to take place, in at least

24  16-point bold type, by certified mail, within 20 days after

25  the association's vote. Within 30 days after the association's

26  opt-out vote, notice of the results of the opt-out vote shall

27  be mailed, hand delivered, or electronically transmitted to

28  all unit owners. Evidence of compliance with this 30-day

29  notice shall be made by an affidavit executed by the person

30  providing the notice and filed among the official records of

31  the association. After such notice is provided to each owner,


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 1  a copy of such notice shall be provided by the current owner

 2  to a new owner prior to closing and shall be provided by a

 3  unit owner to a renter prior to signing a lease.

 4         Section 6.  Subsection (2) of section 718.503, Florida

 5  Statutes, is amended to read:

 6         718.503  Developer disclosure prior to sale;

 7  nondeveloper unit owner disclosure prior to sale;

 8  voidability.--

 9         (2)  NONDEVELOPER DISCLOSURE.--

10         (a)  Each unit owner who is not a developer as defined

11  by this chapter shall comply with the provisions of this

12  subsection prior to the sale of his or her unit.  Each

13  prospective purchaser who has entered into a contract for the

14  purchase of a condominium unit is entitled, at the seller's

15  expense, to a current copy of the declaration of condominium,

16  articles of incorporation of the association, bylaws, and

17  rules of the association, and a copy of the financial

18  information required by s. 718.111, and the document entitled

19  "Frequently Asked Questions and Answers" required by s.

20  718.504.

21         (b)  If a person licensed under part I of chapter 475

22  provides to or otherwise obtains for a prospective purchaser

23  the documents described in this subsection, the person is not

24  liable for any error or inaccuracy contained in the documents.

25         (c)  Each contract entered into after July 1, 1992, for

26  the resale of a residential unit shall contain in conspicuous

27  type either:

28         1.  A clause which states:  THE BUYER HEREBY

29  ACKNOWLEDGES THAT BUYER HAS BEEN PROVIDED A CURRENT COPY OF

30  THE DECLARATION OF CONDOMINIUM, ARTICLES OF INCORPORATION OF

31  THE ASSOCIATION, BYLAWS AND, RULES OF THE ASSOCIATION, AND A


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 1  COPY OF THE MOST RECENT YEAR-END FINANCIAL INFORMATION AND

 2  FREQUENTLY ASKED QUESTIONS AND ANSWERS DOCUMENT MORE THAN 3

 3  DAYS, EXCLUDING SATURDAYS, SUNDAYS, AND LEGAL HOLIDAYS, PRIOR

 4  TO EXECUTION OF THIS CONTRACT; or

 5         2.  A clause which states:  THIS AGREEMENT IS VOIDABLE

 6  BY BUYER BY DELIVERING WRITTEN NOTICE OF THE BUYER'S INTENTION

 7  TO CANCEL WITHIN 3 DAYS, EXCLUDING SATURDAYS, SUNDAYS, AND

 8  LEGAL HOLIDAYS, AFTER THE DATE OF EXECUTION OF THIS AGREEMENT

 9  BY THE BUYER AND RECEIPT BY BUYER OF A CURRENT COPY OF THE

10  DECLARATION OF CONDOMINIUM, ARTICLES OF INCORPORATION, BYLAWS

11  AND, RULES OF THE ASSOCIATION, AND A COPY OF THE MOST RECENT

12  YEAR-END FINANCIAL INFORMATION AND FREQUENTLY ASKED QUESTIONS

13  AND ANSWERS DOCUMENT IF SO REQUESTED IN WRITING. ANY PURPORTED

14  WAIVER OF THESE VOIDABILITY RIGHTS SHALL BE OF NO EFFECT.

15  BUYER MAY EXTEND THE TIME FOR CLOSING FOR A PERIOD OF NOT MORE

16  THAN 3 DAYS, EXCLUDING SATURDAYS, SUNDAYS, AND LEGAL HOLIDAYS,

17  AFTER THE BUYER RECEIVES THE DECLARATION, ARTICLES OF

18  INCORPORATION, BYLAWS, AND RULES OF THE ASSOCIATION, AND A

19  COPY OF THE MOST RECENT YEAR-END FINANCIAL INFORMATION AND

20  FREQUENTLY ASKED QUESTIONS AND ANSWERS DOCUMENT IF REQUESTED

21  IN WRITING. BUYER'S RIGHT TO VOID THIS AGREEMENT SHALL

22  TERMINATE AT CLOSING.

23  

24  A contract that does not conform to the requirements of this

25  paragraph is voidable at the option of the purchaser prior to

26  closing.

27         Section 7.  Section 720.403, Florida Statutes, is

28  created to read:

29         720.403  Preservation of residential communities;

30  revival of declaration of covenants.--

31  


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 1         (1)  Consistent with required and optional elements of

 2  local comprehensive plans and other applicable provisions of

 3  the Local Government Comprehensive Planning and Land

 4  Development Regulation Act, homeowners are encouraged to

 5  preserve existing residential communities, promote available

 6  and affordable housing, protect structural and aesthetic

 7  elements of their residential community, and, as applicable,

 8  maintain roads and streets, easements, water and sewer

 9  systems, utilities, drainage improvements, conservation and

10  open areas, recreational amenities, and other infrastructure

11  and common areas that serve and support the residential

12  community by the revival of a previous declaration of

13  covenants and other governing documents that may have ceased

14  to govern some or all parcels in the community.

15         (2)  In order to preserve a residential community and

16  the associated infrastructure and common areas for the

17  purposes described in this section, the parcel owners in a

18  community that was previously subject to a declaration of

19  covenants that has ceased to govern one or more parcels in the

20  community may revive the declaration and the homeowners'

21  association for the community upon approval by the parcel

22  owners to be governed thereby as provided in this act, and

23  upon approval of the declaration and the other governing

24  documents for the association by the Department of Community

25  Affairs in a manner consistent with this act.

26         Section 8.  Section 720.404, Florida Statutes, is

27  created to read:

28         720.404  Eligible residential communities; requirements

29  for revival of declaration.--Parcel owners in a community are

30  eligible to seek approval from the Department of Community

31  


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 1  Affairs to revive a declaration of covenants under this act if

 2  all of the following requirements are met:

 3         (1)  All parcels to be governed by the revived

 4  declaration must have been once governed by a previous

 5  declaration that has ceased to govern some or all of the

 6  parcels in the community;

 7         (2)  The revived declaration must be approved in the

 8  manner provided in s. 720.405(6); and

 9         (3)  The revived declaration may not contain covenants

10  that are more restrictive on the parcel owners than the

11  covenants contained in the previous declaration, except that

12  the declaration may:

13         (a)  Have an effective term of longer duration than the

14  term of the previous declaration;

15         (b)  Omit restrictions contained in the previous

16  declaration;

17         (c)  Govern fewer than all of the parcels governed by

18  the previous declaration;

19         (d)  Provide for amendments to the declaration and

20  other governing documents; and

21         (e)  Contain provisions required by this chapter for

22  new declarations that were not contained in the previous

23  declaration.

24         Section 9.  Section 720.405, Florida Statutes, is

25  created to read:

26         720.405  Organizing committee; parcel owner approval.--

27         (1)  The proposal to revive a declaration of covenants

28  and a homeowners' association for a community under the terms

29  of this act shall be initiated by an organizing committee

30  consisting of not less than three parcel owners located in the

31  community that is proposed to be governed by the revived


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 1  declaration. The name, address, and telephone number of each

 2  member of the organizing committee must be included in any

 3  notice or other document provided by the committee to parcel

 4  owners to be affected by the proposed revived declaration.

 5         (2)  The organizing committee shall prepare or cause to

 6  be prepared the complete text of the proposed revised

 7  declaration of covenants to be submitted to the parcel owners

 8  for approval. The proposed revived documents must identify

 9  each parcel that is to be subject to the governing documents

10  by its legal description, and by the name of the parcel owner

11  or the person in whose name the parcel is assessed on the last

12  completed tax assessment roll of the county at the time when

13  the proposed revived declaration is submitted for approval by

14  the parcel owners.

15         (3)  The organizing committee shall prepare the full

16  text of the proposed articles of incorporation and bylaws of

17  the revived homeowners' association to be submitted to the

18  parcel owners for approval, unless the association is then an

19  existing corporation, in which case the organizing committee

20  shall prepare the existing articles of incorporation and

21  bylaws to be submitted to the parcel owners.

22         (4)  The proposed revived declaration and other

23  governing documents for the community shall:

24         (a)  Provide that the voting interest of each parcel

25  owner shall be the same as the voting interest of the parcel

26  owner under the previous governing documents;

27         (b)  Provide that the proportional-assessment

28  obligations of each parcel owner shall be the same as

29  proportional-assessment obligations of the parcel owner under

30  the previous governing documents;

31  


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 1         (c)  Contain the same respective amendment provisions

 2  as the previous governing documents or, if there were no

 3  amendment provisions in the previous governing document,

 4  amendment provisions that require approval of not less than

 5  two-thirds of the affected parcel owners;

 6         (d)  Contain no covenants that are more restrictive on

 7  the affected parcel owners than the covenants contained in the

 8  previous governing documents, except as permitted under s.

 9  720.402(3); and

10         (e)  Comply with the other requirements for a

11  declaration of covenants and other governing documents as

12  specified in this chapter.

13         (5)  A copy of the complete text of the proposed

14  revised declaration of covenants, the proposed new or existing

15  articles of incorporation and bylaws of the homeowners'

16  association, and a graphic depiction of the property to be

17  governed by the revived declaration shall be presented to all

18  of the affected parcel owners by mail or hand delivery not

19  less than 14 days before the time that the consent of the

20  affected parcel owners to the proposed governing documents is

21  sought by the organizing committee.

22         (6)  A majority of the affected parcel owners must

23  agree in writing to the revived declaration of covenants and

24  governing documents of the homeowners' association or approve

25  the revived declaration and governing documents by a vote at a

26  meeting of the affected parcel owners noticed and conducted in

27  the manner prescribed by s. 720.306. Proof of notice of the

28  meeting to all affected owners of the meeting and the minutes

29  of the meeting recording the votes of the property owners

30  shall be certified by a court reporter or an attorney licensed

31  to practice in the state.


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 1         Section 10.  Section 720.406, Florida Statutes, is

 2  created to read:

 3         720.406  Department of Community Affairs; submission;

 4  review and determination.--

 5         (1)  No later than 60 days after the date the proposed

 6  revived declaration and other governing documents are approved

 7  by the affected parcel owners, the organizing committee or its

 8  designee must submit the proposed revived governing documents

 9  and supporting materials to the Department of Community

10  Affairs to review and determine whether to approve or

11  disapprove of the proposal to preserve the residential

12  community. The submission to the department must include:

13         (a)  The full text of the proposed revived declaration

14  of covenants and articles of incorporation and bylaws of the

15  homeowners' association;

16         (b)  A verified copy of the previous declaration of

17  covenants and other previous governing documents for the

18  community, including any amendments thereto;

19         (c)  The legal description of each parcel to be subject

20  to the revived declaration and other governing documents and a

21  plat or other graphic depiction of the affected properties in

22  the community;

23         (d)  A verified copy of the written consents of the

24  requisite number of the affected parcel owners approving the

25  revived declaration and other governing documents or, if

26  approval was obtained by a vote at a meeting of affected

27  parcel owners, verified copies of the notice of the meeting,

28  attendance, and voting results;

29         (e)  An affidavit by a current or former officer of the

30  association or by a member of the organizing committee

31  


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 1  verifying that the requirements for the revived declaration

 2  set forth in s. 720.404 have been satisfied; and

 3         (f)  Such other documentation that the organizing

 4  committee believes is supportive of the policy of preserving

 5  the residential community and operating, managing, and

 6  maintaining the infrastructure, aesthetic character, and

 7  common areas serving the residential community.

 8         (2)  No later than 60 days after receiving the

 9  submission, the department must determine whether the proposed

10  revived declaration of covenants and other governing documents

11  comply with the requirements of this act.

12         (a)  If the department determines that the proposed

13  revived declaration and other governing documents comply with

14  the act and have been approved by the parcel owners as

15  required by this act, the department shall notify the

16  organizing committee in writing of its approval.

17         (b)  If the department determines that the proposed

18  revived declaration and other governing documents do not

19  comply with this act or have not been approved as required by

20  this act, the department shall notify the organizing committee

21  in writing that it does not approve the governing documents

22  and shall state the reasons for the disapproval.

23         Section 11.  Section 720.407, Florida Statutes, is

24  created to read:

25         720.407  Recording; notice of recording; applicability

26  and effective date.--

27         (1)  No later than 30 days after receiving approval

28  from the department, the organizing committee shall file the

29  articles of incorporation of the association with the Division

30  of Corporations of the Department of State if the articles

31  have not been previously filed with the division.


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 1         (2)  No later than 30 days after receiving approval

 2  from the division, the president and secretary of the

 3  association shall execute the revived declaration and other

 4  governing documents approved by the department in the name of

 5  the association and have the documents recorded with the clerk

 6  of the circuit court in the county where the affected parcels

 7  are located.

 8         (3)  The recorded documents shall include the full text

 9  of the approved declaration of covenants, the articles of

10  incorporation and bylaws of the homeowners' association, the

11  letter of approval by the department, and the legal

12  description of each affected parcel of property. For purposes

13  of chapter 712, the association is deemed to be and shall be

14  indexed as the grantee in a title transaction and the parcel

15  owners named in the revived declaration are deemed to be and

16  shall be indexed as the grantors in the title transaction.

17         (4)  Immediately after recording the documents, a

18  complete copy of all of the approved recorded documents must

19  be mailed or hand delivered to the owner of each affected

20  parcel. The revived declaration and other governing documents

21  shall be effective upon recordation in the public records with

22  respect to each affected parcel subject thereto, regardless of

23  whether the particular parcel owner approved the revived

24  declaration. Upon recordation, the revived declaration shall

25  replace and supersede the previous declaration with respect to

26  all affected parcels then governed by the previous declaration

27  and shall have the same record priority as the superseded

28  previous declaration.  With respect to any affected parcels

29  that had ceased to be governed by the previous declaration as

30  of the recording date, the revived declaration may not have

31  


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 1  retroactive effect with respect to the parcel and shall take

 2  priority with respect to the parcel as of the recording date.

 3         (5)  With respect to any parcel that has ceased to be

 4  governed by a previous declaration of covenants as of the

 5  effective date of this act, the parcel owner may commence an

 6  action within one year after the effective date of this act

 7  for a judicial determination that the previous declaration did

 8  not govern that parcel as of the effective date of this act

 9  and that any revival of such declaration as to that parcel

10  would unconstitutionally deprive the parcel owner of rights or

11  property. A revived declaration that is implemented pursuant

12  to this act shall not apply to or affect the rights of the

13  respective parcel owner recognized by any court order or

14  judgment in any such action commenced within one year after

15  the effective date of this act, and any such rights so

16  recognized may not be subsequently altered by a revived

17  declaration implemented under this act without the consent of

18  the affected property owner.

19         Section 12.  Subsection (16) of section 718.103,

20  Florida Statutes, is amended to read:

21         718.103  Definitions.--As used in this chapter, the

22  term:

23         (16)  "Developer" means a person who creates a

24  condominium or offers condominium parcels for sale or lease in

25  the ordinary course of business, but does not include an owner

26  or lessee of a condominium or cooperative unit who has

27  acquired the unit for his or her own occupancy, nor does it

28  include a cooperative association which creates a condominium

29  by conversion of an existing residential cooperative after

30  control of the association has been transferred to the unit

31  owners if, following the conversion, the unit owners will be


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 1  the same persons who were unit owners of the cooperative and

 2  no units are offered for sale or lease to the public as part

 3  of the plan of conversion. A state, county, or municipal

 4  entity is not a developer for any purposes under this act when

 5  it is acting as a lessor and not otherwise named as a

 6  developer in the association.

 7         Section 13.  Section 720.301, Florida Statutes, is

 8  amended to read:

 9         720.301  Definitions.--As used in ss. 720.301-720.501

10  ss. 720.301-720.312, the term:

11         (1)  "Assessment" or "amenity fee" means a sum or sums

12  of money payable to the association, to the developer or other

13  owner of common areas, or to recreational facilities and other

14  properties serving the parcels by the owners of one or more

15  parcels as authorized in the governing documents, which if not

16  paid by the owner of a parcel, can result in a lien against

17  the parcel.

18         (2)  "Common area" means all real property within a

19  community which is owned or leased by an association or

20  dedicated for use or maintenance by the association or its

21  members, including, regardless of whether title has been

22  conveyed to the association:

23         (a)  Real property the use of which is dedicated to the

24  association or its members by a recorded plat; or

25         (b)  Real property committed by a declaration of

26  covenants to be leased or conveyed to the association.

27         (3)  "Community" means the real property that is or

28  will be subject to a declaration of covenants which is

29  recorded in the county where the property is located.  The

30  term "community" includes all real property, including

31  undeveloped phases, that is or was the subject of a


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 1  development-of-regional-impact development order, together

 2  with any approved modification thereto.

 3         (4)  "Declaration of covenants," or "declaration,"

 4  means a recorded written instrument in the nature of covenants

 5  running with the land which subjects the land comprising the

 6  community to the jurisdiction and control of an association or

 7  associations in which the owners of the parcels, or their

 8  association representatives, must be members.

 9         (5)  "Department" means the Department of Business and

10  Professional Regulation.

11         (6)(5)  "Developer" means a person or entity that:

12         (a)  Creates the community served by the association;

13  or

14         (b)  Succeeds to the rights and liabilities of the

15  person or entity that created the community served by the

16  association, provided that such is evidenced in writing.

17         (7)  "Division" means the Division of Florida Land

18  Sales, Condominiums, and Mobile Homes in the Department of

19  Business and Professional Regulation.

20         (8)(6)  "Governing documents" means:

21         (a)  The recorded declaration of covenants for a

22  community, and all duly adopted and recorded amendments,

23  supplements, and recorded exhibits thereto; and

24         (b)  The articles of incorporation and bylaws of the

25  homeowners' association, and any duly adopted amendments

26  thereto.

27         (9)(7)  "Homeowners' association" or "association"

28  means a Florida corporation responsible for the operation of a

29  community or a mobile home subdivision in which the voting

30  membership is made up of parcel owners or their agents, or a

31  combination thereof, and in which membership is a mandatory


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 1  condition of parcel ownership, and which is authorized to

 2  impose assessments that, if unpaid, may become a lien on the

 3  parcel.  The term "homeowners' association" does not include a

 4  community development district or other similar special taxing

 5  district created pursuant to statute.

 6         (10)(8)  "Member" means a member of an association, and

 7  may include, but is not limited to, a parcel owner or an

 8  association representing parcel owners or a combination

 9  thereof, and shall include any person or entity obligated by

10  the governing documents to pay an assessment or amenity fee.

11         (11)(9)  "Parcel" means a platted or unplatted lot,

12  tract, unit, or other subdivision of real property within a

13  community, as described in the declaration:

14         (a)  Which is capable of separate conveyance; and

15         (b)  Of which the parcel owner, or an association in

16  which the parcel owner must be a member, is obligated:

17         1.  By the governing documents to be a member of an

18  association that serves the community; and

19         2.  To pay to the homeowners' association assessments

20  that, if not paid, may result in a lien.

21         (12)(10)  "Parcel owner" means the record owner of

22  legal title to a parcel.

23         (13)(11)  "Voting interest" means the voting rights

24  distributed to the members of the homeowners' association,

25  pursuant to the governing documents.

26         Section 14.  Subsection (2) of section 720.302, Florida

27  Statutes, is amended to read:

28         720.302  Purposes, scope, and application.--

29         (2)  The Legislature recognizes that it is not in the

30  best interest of homeowners' associations or the individual

31  association members thereof to create or impose a bureau or


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 1  other agency of state government to regulate the affairs of

 2  homeowners' associations. However, in accordance with s.

 3  720.311, the Legislature finds that homeowners' associations

 4  and their individual members will benefit from an expedited

 5  alternative process for resolution of election and recall

 6  disputes and presuit mediation of other disputes involving

 7  covenant enforcement and authorizes the department to hear,

 8  administer, and determine these disputes as more fully set

 9  forth in this chapter. Further, the Legislature recognizes

10  that certain contract rights have been created for the benefit

11  of homeowners' associations and members thereof before the

12  effective date of this act and that ss. 720.301-720.501 ss.

13  720.301-720.312 are not intended to impair such contract

14  rights, including, but not limited to, the rights of the

15  developer to complete the community as initially contemplated.

16         Section 15.  Section 720.303, Florida Statutes, is

17  amended to read:

18         720.303  Association powers and duties; meetings of

19  board; official records; budgets; financial reporting;

20  association funds; recalls.--

21         (1)  POWERS AND DUTIES.--An association which operates

22  a community as defined in s. 720.301, must be operated by an

23  association that is a Florida corporation. After October 1,

24  1995, the association must be incorporated and the initial

25  governing documents must be recorded in the official records

26  of the county in which the community is located. An

27  association may operate more than one community. The officers

28  and directors of an association have a fiduciary relationship

29  to the members who are served by the association. The powers

30  and duties of an association include those set forth in this

31  chapter and, except as expressly limited or restricted in this


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 1  chapter, those set forth in the governing documents. After

 2  control of the association is obtained by members unit owners

 3  other than the developer, the association may institute,

 4  maintain, settle, or appeal actions or hearings in its name on

 5  behalf of all members concerning matters of common interest to

 6  the members, including, but not limited to, the common areas;

 7  roof or structural components of a building, or other

 8  improvements for which the association is responsible;

 9  mechanical, electrical, or plumbing elements serving an

10  improvement or building for which the association is

11  responsible; representations of the developer pertaining to

12  any existing or proposed commonly used facility; and

13  protesting ad valorem taxes on commonly used facilities. The

14  association may defend actions in eminent domain or bring

15  inverse condemnation actions. Before commencing litigation

16  against any party in the name of the association involving

17  amounts in controversy in excess of $100,000, the association

18  must obtain the affirmative approval of a majority of the

19  voting interests at a meeting of the membership at which a

20  quorum has been attained. This subsection does not limit any

21  statutory or common-law right of any individual member or

22  class of members to bring any action without participation by

23  the association. A member does not have authority to act for

24  the association by virtue of being a member. An association

25  may have more than one class of members and may issue

26  membership certificates. An association of 15 or fewer parcel

27  owners may enforce only the requirements of those deed

28  restrictions established prior to the purchase of each parcel

29  upon an affected parcel owner or owners.

30         (2)  BOARD MEETINGS.--

31  


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 1         (a)  A meeting of the board of directors of an

 2  association occurs whenever a quorum of the board gathers to

 3  conduct association business.  All meetings of the board must

 4  be open to all members except for meetings between the board

 5  and its attorney with respect to proposed or pending

 6  litigation where the contents of the discussion would

 7  otherwise be governed by the attorney-client privilege.

 8         (b)  Members have the right to attend all meetings of

 9  the board and to speak on any matter placed on the agenda by

10  petition of the voting interests for at least 3 minutes. The

11  association may adopt written reasonable rules expanding the

12  right of members to speak and governing the frequency,

13  duration, and other manner of member statements, which rules

14  must be consistent with this paragraph and may include a

15  sign-up sheet for members wishing to speak. Notwithstanding

16  any other law, the requirement that board meetings and

17  committee meetings be open to the members is inapplicable to

18  meetings between the board or a committee and the

19  association's attorney, with respect to meetings of the board

20  held for the purpose of discussing personnel matters.

21         (c)  The bylaws shall provide for giving notice to

22  parcel owners and members of all board meetings and, if they

23  do not do so, shall be deemed to provide the following:

24         1.  Notices of all board meetings must be posted in a

25  conspicuous place in the community at least 48 hours in

26  advance of a meeting, except in an emergency.  In the

27  alternative, if notice is not posted in a conspicuous place in

28  the community, notice of each board meeting must be mailed or

29  delivered to each member at least 7 days before the meeting,

30  except in an emergency. Notwithstanding this general notice

31  requirement, for communities with more than 100 members, the


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 1  bylaws may provide for a reasonable alternative to posting or

 2  mailing of notice for each board meeting, including

 3  publication of notice, provision of a schedule of board

 4  meetings, or the conspicuous posting and repeated broadcasting

 5  of the notice on a closed-circuit cable television system

 6  serving the homeowners' association. However, if broadcast

 7  notice is used in lieu of a notice posted physically in the

 8  community, the notice must be broadcast at least four times

 9  every broadcast hour of each day that a posted notice is

10  otherwise required. When broadcast notice is provided, the

11  notice and agenda must be broadcast in a manner and for a

12  sufficient continuous length of time so as to allow an average

13  reader to observe the notice and read and comprehend the

14  entire content of the notice and the agenda. The bylaws or

15  amended bylaws may provide for giving notice by electronic

16  transmission in a manner authorized by law for meetings of the

17  board of directors, committee meetings requiring notice under

18  this section, and annual and special meetings of the members;

19  however, a member must consent in writing to receiving notice

20  by electronic transmission.

21         2.  An assessment may not be levied at a board meeting

22  unless a written the notice of the meeting is provided to all

23  members at least 14 days before the meeting, which notice

24  includes a statement that assessments will be considered at

25  the meeting and the nature of the assessments. Written notice

26  of any meeting at which special assessments will be considered

27  or at which rules that regulate the use of parcels in the

28  community may be adopted, amended, or revoked must be mailed,

29  delivered, or electronically transmitted to the members and

30  parcel owners and posted conspicuously on the property or

31  broadcast on closed-circuit cable television not less than 14


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 1  days before the meeting.  A written notice concerning changes

 2  to the rules that regulate the use of parcels in the community

 3  must include a statement that changes to the rules regarding

 4  the use of parcels will be considered at the meeting.

 5         3.  Directors may not vote by proxy or by secret ballot

 6  at board meetings, except that secret ballots may be used in

 7  the election of officers.  This subsection also applies to the

 8  meetings of any committee or other similar body, when a final

 9  decision will be made regarding the expenditure of association

10  funds, and to any body vested with the power to approve or

11  disapprove architectural decisions with respect to a specific

12  parcel of residential property owned by a member of the

13  community.

14         (d)  If 20 percent of the total voting interests

15  petition the board to address an item of business, the board

16  shall at its next regular board meeting or at a special

17  meeting of the board, but not later than 60 days after the

18  receipt of the petition, take the petitioned item up on an

19  agenda. The board shall give all members notice of the meeting

20  at which the petitioned item shall be addressed in accordance

21  with the 14-day notice requirement pursuant to subparagraph 2.

22  Each member shall have the right to speak for at least 3

23  minutes on each matter placed on the agenda by petition,

24  provided that the member signs the sign-up sheet, if one is

25  provided, or submits a written request to speak prior to the

26  meeting. Other than addressing the petitioned item at the

27  meeting, the board is not obligated to take any other action

28  requested by the petition.

29         (3)  MINUTES.--Minutes of all meetings of the members

30  of an association and of the board of directors of an

31  association must be maintained in written form or in another


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 1  form that can be converted into written form within a

 2  reasonable time.  A vote or abstention from voting on each

 3  matter voted upon for each director present at a board meeting

 4  must be recorded in the minutes.

 5         (4)  OFFICIAL RECORDS.--The association shall maintain

 6  each of the following items, when applicable, which constitute

 7  the official records of the association:

 8         (a)  Copies of any plans, specifications, permits, and

 9  warranties related to improvements constructed on the common

10  areas or other property that the association is obligated to

11  maintain, repair, or replace.

12         (b)  A copy of the bylaws of the association and of

13  each amendment to the bylaws.

14         (c)  A copy of the articles of incorporation of the

15  association and of each amendment thereto.

16         (d)  A copy of the declaration of covenants and a copy

17  of each amendment thereto.

18         (e)  A copy of the current rules of the homeowners'

19  association.

20         (f)  The minutes of all meetings of the board of

21  directors and of the members, which minutes must be retained

22  for at least 7 years.

23         (g)  A current roster of all members and their mailing

24  addresses and parcel identifications. The association shall

25  also maintain the electronic mailing addresses and the numbers

26  designated by members for receiving notice sent by electronic

27  transmission of those members consenting to receive notice by

28  electronic transmission. The electronic mailing addresses and

29  numbers provided by unit owners to receive notice by

30  electronic transmission shall be removed from association

31  records when consent to receive notice by electronic


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 1  transmission is revoked. However, the association is not

 2  liable for an erroneous disclosure of the electronic mail

 3  address or the number for receiving electronic transmission of

 4  notices.

 5         (h)  All of the association's insurance policies or a

 6  copy thereof, which policies must be retained for at least 7

 7  years.

 8         (i)  A current copy of all contracts to which the

 9  association is a party, including, without limitation, any

10  management agreement, lease, or other contract under which the

11  association has any obligation or responsibility.  Bids

12  received by the association for work to be performed must also

13  be considered official records and must be kept for a period

14  of 1 year.

15         (j)  The financial and accounting records of the

16  association, kept according to good accounting practices.  All

17  financial and accounting records must be maintained for a

18  period of at least 7 years.  The financial and accounting

19  records must include:

20         1.  Accurate, itemized, and detailed records of all

21  receipts and expenditures.

22         2.  A current account and a periodic statement of the

23  account for each member, designating the name and current

24  address of each member who is obligated to pay assessments,

25  the due date and amount of each assessment or other charge

26  against the member, the date and amount of each payment on the

27  account, and the balance due.

28         3.  All tax returns, financial statements, and

29  financial reports of the association.

30         4.  Any other records that identify, measure, record,

31  or communicate financial information.


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 1         (k)  A copy of the disclosure summary described in s.

 2  720.401(1).

 3         (l)  All other written records of the association not

 4  specifically included in the foregoing which are related to

 5  the operation of the association.

 6         (5)  INSPECTION AND COPYING OF RECORDS.--The official

 7  records shall be maintained within the state and must be open

 8  to inspection and available for photocopying by members or

 9  their authorized agents at reasonable times and places within

10  10 business days after receipt of a written request for

11  access. This subsection may be complied with by having a copy

12  of the official records available for inspection or copying in

13  the community. If the association has a photocopy machine

14  available where the records are maintained, it must provide

15  parcel owners with copies on request during the inspection if

16  the entire request is limited to no more than 25 pages.

17         (a)  The failure of an association to provide access to

18  the records within 10 business days after receipt of a written

19  request creates a rebuttable presumption that the association

20  willfully failed to comply with this subsection.

21         (b)  A member who is denied access to official records

22  is entitled to the actual damages or minimum damages for the

23  association's willful failure to comply with this subsection.

24  The minimum damages are to be $50 per calendar day up to 10

25  days, the calculation to begin on the 11th business day after

26  receipt of the written request.

27         (c)  The association may adopt reasonable written rules

28  governing the frequency, time, location, notice, records to be

29  inspected, and manner of inspections, but may not impose a

30  requirement that a parcel owner demonstrate any proper purpose

31  for the inspection, state any reason for the inspection, or


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 1  limit a parcel owner's right to inspect records to less than

 2  one 8-hour business day per month. The association and may

 3  impose fees to cover the costs of providing copies of the

 4  official records, including, without limitation, the costs of

 5  copying. The association may charge up to 50 cents per page

 6  for copies made on the association's photocopier. If the

 7  association does not have a photocopy machine available where

 8  the records are kept, or if the records requested to be copied

 9  exceed 25 pages in length, the association may have copies

10  made by an outside vendor and may charge the actual cost of

11  copying. The association shall maintain an adequate number of

12  copies of the recorded governing documents, to ensure their

13  availability to members and prospective members, and may

14  charge only its actual costs for reproducing and furnishing

15  these documents to those persons who are entitled to receive

16  them. Notwithstanding the provisions of this paragraph, the

17  following records shall not be accessible to members or parcel

18  owners:

19         1.  Any record protected by the lawyer-client privilege

20  as described in s. 90.502 and any record protected by the

21  work-product privilege, including, but not limited to, any

22  record prepared by an association attorney or prepared at the

23  attorney's express direction which reflects a mental

24  impression, conclusion, litigation strategy, or legal theory

25  of the attorney or the association and was prepared

26  exclusively for civil or criminal litigation or for

27  adversarial administrative proceedings or which was prepared

28  in anticipation of imminent civil or criminal litigation or

29  imminent adversarial administrative proceedings until the

30  conclusion of the litigation or adversarial administrative

31  proceedings.


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 1         2.  Information obtained by an association in

 2  connection with the approval of the lease, sale, or other

 3  transfer of a parcel.

 4         3.  Disciplinary, health, insurance, and personnel

 5  records of the association's employees.

 6         4.  Medical records of parcel owners or community

 7  residents.

 8         (6)  BUDGETS.--The association shall prepare an annual

 9  budget. The budget must reflect the estimated revenues and

10  expenses for that year and the estimated surplus or deficit as

11  of the end of the current year.  The budget must set out

12  separately all fees or charges for recreational amenities,

13  whether owned by the association, the developer, or another

14  person.  The association shall provide each member with a copy

15  of the annual budget or a written notice that a copy of the

16  budget is available upon request at no charge to the member.

17  The copy must be provided to the member within the time limits

18  set forth in subsection (5).

19         (7)  FINANCIAL REPORTING.--The association shall

20  prepare an annual financial report within 60 days after the

21  close of the fiscal year. The association shall, within the

22  time limits set forth in subsection (5), provide each member

23  with a copy of the annual financial report or a written notice

24  that a copy of the financial report is available upon request

25  at no charge to the member. Financial reports shall be

26  prepared as follows The financial report must consist of

27  either:

28         (a)  An association that meets the criteria of this

29  paragraph shall prepare or cause to be prepared a complete set

30  of financial statements in accordance with generally accepted

31  


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 1  accounting principles. The financial statements shall be based

 2  upon the association's total annual revenues, as follows:

 3         1.  An association with total annual revenues of

 4  $100,000 or more, but less than $200,000, shall prepare

 5  compiled financial statements.

 6         2.  An association with total annual revenues of at

 7  least $200,000, but less than $400,000, shall prepare reviewed

 8  financial statements.

 9         3.  An association with total annual revenues of

10  $400,000 or more shall prepare audited financial statements.

11  Financial statements presented in conformity with generally

12  accepted accounting principles; or

13         (b)  A financial report of actual receipts and

14  expenditures, cash basis, which report must show:

15         1.  An association with total annual revenues of less

16  than $100,000 shall prepare a report of cash receipts and

17  expenditures. The amount of receipts and expenditures by

18  classification; and

19         2.  An association in a community of fewer than 50

20  parcels, regardless of the association's annual revenues, may

21  prepare a report of cash receipts and expenditures in lieu of

22  financial statements required by paragraph (a) unless the

23  governing documents provide otherwise. The beginning and

24  ending cash balances of the association.

25         3.  A report of cash receipts and disbursement must

26  disclose the amount of receipts by accounts and receipt

27  classifications and the amount of expenses by accounts and

28  expense classifications, including, but not limited to, the

29  following, as applicable: costs for security, professional,

30  and management fees and expenses; taxes; costs for recreation

31  facilities; expenses for refuse collection and utility


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 1  services; expenses for lawn care; costs for building

 2  maintenance and repair; insurance costs; administration and

 3  salary expenses; and reserves if maintained by the

 4  association.

 5         (c)  If 20 percent of the parcel owners petition the

 6  board for a level of financial reporting higher than that

 7  required by this section, the association shall duly notice

 8  and hold a meeting of members within 30 days of receipt of the

 9  petition for the purpose of voting on raising the level of

10  reporting for that fiscal year. Upon approval of a majority of

11  the total voting interests of the parcel owners, the

12  association shall prepare or cause to be prepared, shall amend

13  the budget or adopt a special assessment to pay for the

14  financial report regardless of any provision to the contrary

15  in the governing documents, and shall provide within 90 days

16  of the meeting or the end of the fiscal year, whichever occurs

17  later:

18         1.  Compiled, reviewed, or audited financial

19  statements, if the association is otherwise required to

20  prepare a report of cash receipts and expenditures;

21         2.  Reviewed or audited financial statements, if the

22  association is otherwise required to prepare compiled

23  financial statements; or

24         3.  Audited financial statements if the association is

25  otherwise required to prepare reviewed financial statements.

26         (d)  If approved by a majority of the voting interests

27  present at a properly called meeting of the association, an

28  association may prepare or cause to be prepared:

29         1.  A report of cash receipts and expenditures in lieu

30  of a compiled, reviewed, or audited financial statement;

31  


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 1         2.  A report of cash receipts and expenditures or a

 2  compiled financial statement in lieu of a reviewed or audited

 3  financial statement; or

 4         3.  A report of cash receipts and expenditures, a

 5  compiled financial statement, or a reviewed financial

 6  statement in lieu of an audited financial statement.

 7         (8)  ASSOCIATION FUNDS; COMMINGLING.--

 8         (a)  All association funds held by a developer shall be

 9  maintained separately in the association's name. Reserve and

10  operating funds of the association shall not be commingled

11  prior to turnover except the association may jointly invest

12  reserve funds; however, such jointly invested funds must be

13  accounted for separately.

14         (b)  No developer in control of a homeowners'

15  association shall commingle any association funds with his or

16  her funds or with the funds of any other homeowners'

17  association or community association.

18         (c)  Association funds may not be used by a developer

19  to defend a civil or criminal action, administrative

20  proceeding, or arbitration proceeding that has been filed

21  against the developer or directors appointed to the

22  association board by the developer, even when the subject of

23  the action or proceeding concerns the operation of the

24  developer-controlled association.

25         (9)  APPLICABILITY.--Sections 617.1601-617.1604 do not

26  apply to a homeowners' association in which the members have

27  the inspection and copying rights set forth in this section.

28         (10)  RECALL OF DIRECTORS.--

29         (a)1.  Regardless of any provision to the contrary

30  contained in the governing documents, subject to the

31  provisions of s. 720.307 regarding transition of association


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 1  control, any member of the board or directors may be recalled

 2  and removed from office with or without cause by a majority of

 3  the total voting interests.

 4         2.  When the governing documents, including the

 5  declaration, articles of incorporation, or bylaws, provide

 6  that only a specific class of members is entitled to elect a

 7  board director or directors, only that class of members may

 8  vote to recall those board directors so elected.

 9         (b)1.  Board directors may be recalled by an agreement

10  in writing or by written ballot without a membership meeting.

11  The agreement in writing or the written ballots, or a copy

12  thereof, shall be served on the association by certified mail

13  or by personal service in the manner authorized by chapter 48

14  and the Florida Rules of Civil Procedure.

15         2.  The board shall duly notice and hold a meeting of

16  the board within 5 full business days after receipt of the

17  agreement in writing or written ballots. At the meeting, the

18  board shall either certify the written ballots or written

19  agreement to recall a director or directors of the board, in

20  which case such director or directors shall be recalled

21  effective immediately and shall turn over to the board within

22  5 full business days any and all records and property of the

23  association in their possession, or proceed as described in

24  paragraph (d).

25         3.  When it is determined by the department pursuant to

26  binding arbitration proceedings that an initial recall effort

27  was defective, written recall agreements or written ballots

28  used in the first recall effort and not found to be defective

29  may be reused in one subsequent recall effort. However, in no

30  event is a written agreement or written ballot valid for more

31  than 120 days after it has been signed by the member.


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 1         4.  Any rescission or revocation of a member's written

 2  recall ballot or agreement must be in writing and, in order to

 3  be effective, must be delivered to the association before the

 4  association is served with the written recall agreements or

 5  ballots.

 6         5.  The agreement in writing or ballot shall list at

 7  least as many possible replacement directors as there are

 8  directors subject to the recall, when at least a majority of

 9  the board is sought to be recalled; the person executing the

10  recall instrument may vote for as many replacement candidates

11  as there are directors subject to the recall.

12         (c)1.  If the declaration, articles of incorporation,

13  or bylaws specifically provide, the members may also recall

14  and remove a board director or directors by a vote taken at a

15  meeting. If so provided in the governing documents, a special

16  meeting of the members to recall a director or directors of

17  the board of administration may be called by 10 percent of the

18  voting interests giving notice of the meeting as required for

19  a meeting of members, and the notice shall state the purpose

20  of the meeting. Electronic transmission may not be used as a

21  method of giving notice of a meeting called in whole or in

22  part for this purpose.

23         2.  The board shall duly notice and hold a board

24  meeting within 5 full business days after the adjournment of

25  the member meeting to recall one or more directors. At the

26  meeting, the board shall certify the recall, in which case

27  such member or members shall be recalled effective immediately

28  and shall turn over to the board within 5 full business days

29  any and all records and property of the association in their

30  possession, or shall proceed as set forth in subparagraph (d).

31  


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 1         (d)  If the board determines not to certify the written

 2  agreement or written ballots to recall a director or directors

 3  of the board or does not certify the recall by a vote at a

 4  meeting, the board shall, within 5 full business days after

 5  the meeting, file with the department a petition for binding

 6  arbitration pursuant to the applicable procedures in ss.

 7  718.1255 and 718.112(2)(j) and the rules adopted thereunder.

 8  For the purposes of this section, the members who voted at the

 9  meeting or who executed the agreement in writing shall

10  constitute one party under the petition for arbitration. If

11  the arbitrator certifies the recall as to any director or

12  directors of the board, the recall will be effective upon

13  mailing of the final order of arbitration to the association.

14  The director or directors so recalled shall deliver to the

15  board any and all records of the association in their

16  possession within 5 full business days after the effective

17  date of the recall.

18         (e)  If a vacancy occurs on the board as a result of a

19  recall and less than a majority of the board directors are

20  removed, the vacancy may be filled by the affirmative vote of

21  a majority of the remaining directors, notwithstanding any

22  provision to the contrary contained in this subsection or in

23  the association documents. If vacancies occur on the board as

24  a result of a recall and a majority or more of the board

25  directors are removed, the vacancies shall be filled by

26  members voting in favor of the recall; if removal is at a

27  meeting, any vacancies shall be filled by the members at the

28  meeting. If the recall occurred by agreement in writing or by

29  written ballot, members may vote for replacement directors in

30  the same instrument in accordance with procedural rules

31  


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 1  adopted by the division, which rules need not be consistent

 2  with this subsection.

 3         (f)  If the board fails to duly notice and hold a board

 4  meeting within 5 full business days after service of an

 5  agreement in writing or within 5 full business days after the

 6  adjournment of the member recall meeting, the recall shall be

 7  deemed effective and the board directors so recalled shall

 8  immediately turn over to the board all records and property of

 9  the association.

10         (g)  If a director who is removed fails to relinquish

11  his or her office or turn over records as required under this

12  section, the circuit court in the county where the association

13  maintains its principal office may, upon the petition of the

14  association, summarily order the director to relinquish his or

15  her office and turn over all association records upon

16  application of the association.

17         (h)  The minutes of the board meeting at which the

18  board decides whether to certify the recall are an official

19  association record. The minutes must record the date and time

20  of the meeting, the decision of the board, and the vote count

21  taken on each board member subject to the recall. In addition,

22  when the board decides not to certify the recall, as to each

23  vote rejected, the minutes must identify the parcel number and

24  the specific reason for each such rejection.

25         (i)  When the recall of more than one board director is

26  sought, the written agreement, ballot, or vote at a meeting

27  shall provide for a separate vote for each board director

28  sought to be recalled.

29         Section 16.  Section 720.304, Florida Statutes, is

30  amended to read:

31  


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 1         720.304  Right of owners to peaceably assemble; display

 2  of flag; SLAPP suits prohibited.--

 3         (1)  All common areas and recreational facilities

 4  serving any homeowners' association shall be available to

 5  parcel owners in the homeowners' association served thereby

 6  and their invited guests for the use intended for such common

 7  areas and recreational facilities.  The entity or entities

 8  responsible for the operation of the common areas and

 9  recreational facilities may adopt reasonable rules and

10  regulations pertaining to the use of such common areas and

11  recreational facilities.  No entity or entities shall

12  unreasonably restrict any parcel owner's right to peaceably

13  assemble or right to invite public officers or candidates for

14  public office to appear and speak in common areas and

15  recreational facilities.

16         (2)  Any homeowner may display one portable, removable

17  United States flag or official flag of the State of Florida in

18  a respectful manner, and on Armed Forces Day, Memorial Day,

19  Flag Day, Independence Day, and Veterans Day may display in a

20  respectful manner portable, removable official flags, not

21  larger than 4 1/2 feet by 6 feet, which represents the United

22  States Army, Navy, Air Force, Marine Corps, or Coast Guard,

23  regardless of any declaration rules or requirements dealing

24  with flags or decorations.

25         (3)  Any owner prevented from exercising rights

26  guaranteed by subsection (1) or subsection (2) may bring an

27  action in the appropriate court of the county in which the

28  alleged infringement occurred, and, upon favorable

29  adjudication, the court shall enjoin the enforcement of any

30  provision contained in any homeowners' association document or

31  rule that operates to deprive the owner of such rights.


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 1         (4)  It is the intent of the Legislature to protect the

 2  right of parcel owners to exercise their rights as protected

 3  by the First Amendment to the United States Constitution and

 4  s. 5, Art. I of the State Constitution. The Legislature

 5  recognizes that strategic lawsuits against public

 6  participation, or "SLAPP" suits, have occurred when a member

 7  is sued by individuals or business organization due to a

 8  parcel-owner member's appearance and presentation before a

 9  governmental entity on matters related to the homeowners'

10  association. However, it is the public policy of this state

11  that business organizations and individuals not engage in such

12  suits, because such actions are inconsistent with the right of

13  parcel owners to participate in the state's institutions of

14  government. Therefore, the Legislature finds and declares that

15  prohibiting such lawsuits by business organizations and

16  individuals against parcel owners who address matters

17  concerning their homeowners' association will preserve this

18  fundamental state policy, preserve the constitutional rights

19  of parcel owners, and assure the continuation of

20  representative government in this state. It is the intent of

21  the Legislature that such lawsuits be expeditiously disposed

22  of by the courts.

23         (a)  A business organization or individual in this

24  state may not file or cause to be filed through its employees

25  or agents any lawsuit, cause of action, claim, cross-claim, or

26  counterclaim against a parcel owner without merit and solely

27  because the parcel owner has exercised the right to instruct

28  his or her representatives or the right to petition for

29  redress of grievances before the governmental entities of this

30  state, as protected by the First Amendment to the United

31  


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 1  States Constitution and s. 5, Art. I of the State

 2  Constitution.

 3         (b)  A parcel owner sued by a business organization or

 4  individual in violation of this section has a right to an

 5  expeditious resolution of a claim that the suit violates this

 6  section. A parcel owner may petition the court for an order

 7  dismissing the action or granting final judgment in favor of

 8  that parcel owner. The petitioner may file a motion for

 9  summary judgment, with supplemental affidavits, seeking a

10  determination that the business organization's or individual's

11  lawsuit has been brought in violation of this section. The

12  business organization or individual must thereafter file a

13  response and any supplemental affidavits. As soon as

14  practicable, the court shall set a hearing on the petitioner's

15  motion, which shall be held at the earliest possible time

16  after the filing of the response. The court may award the

17  parcel owner actual damages arising from the violation of this

18  section. A court may award treble damages to a prevailing

19  parcel owner and shall state the basis for the treble damages

20  award in its judgment. The court shall award the prevailing

21  party reasonable attorney's fees and costs incurred in

22  connection with a claim that an action was filed in violation

23  of this section.

24         (c)  Homeowners' associations may not expend

25  association funds in prosecuting a SLAPP suit against a parcel

26  owner.

27         (5)(a)  Any parcel owner may construct an access ramp

28  if a resident or occupant of the parcel has a medical

29  necessity or disability that requires a ramp for egress and

30  ingress under the following conditions:

31  


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 1         1.  The ramp must be as unobtrusive as possible, be

 2  designed to blend in aesthetically as practicable, and be

 3  reasonably sized to fit the intended use.

 4         2.  Plans for the ramp must be submitted in advance to

 5  the homeowners' association. The association may make

 6  reasonable requests to modify the design to achieve

 7  architectural consistency with surrounding structures and

 8  surfaces.

 9         (b)  The parcel owner must submit to the association an

10  affidavit from a physician attesting to the medical necessity

11  or disability of the resident or occupant of the parcel

12  requiring the access ramp. Certification used for s. 320.0848

13  shall be sufficient to meet the affidavit requirement.

14         (6)  Any parcel owner may display a sign of reasonable

15  size provided by a contractor for security services within 10

16  feet of any entrance to the home.

17         Section 17.  Subsection (2) of section 720.305, Florida

18  Statutes, is amended to read:

19         720.305  Obligations of members; remedies at law or in

20  equity; levy of fines and suspension of use rights; failure to

21  fill sufficient number of vacancies on board of directors to

22  constitute a quorum; appointment of receiver upon petition of

23  any member.--

24         (2)  If the governing documents so provide, an

25  association may suspend, for a reasonable period of time, the

26  rights of a member or a member's tenants, guests, or invitees,

27  or both, to use common areas and facilities and may levy

28  reasonable fines, not to exceed $100 per violation, against

29  any member or any tenant, guest, or invitee. A fine may be

30  levied on the basis of each day of a continuing violation,

31  with a single notice and opportunity for hearing, except that


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 1  no such fine shall exceed $1,000 in the aggregate unless

 2  otherwise provided in the governing documents. A fine shall

 3  not become a lien against a parcel. In any action to recover a

 4  fine, the prevailing party is entitled to collect its

 5  reasonable attorney's fees and costs from the nonprevailing

 6  party as determined by the court.

 7         (a)  A fine or suspension may not be imposed without

 8  notice of at least 14 days to the person sought to be fined or

 9  suspended and an opportunity for a hearing before a committee

10  of at least three members appointed by the board who are not

11  officers, directors, or employees of the association, or the

12  spouse, parent, child, brother, or sister of an officer,

13  director, or employee.  If the committee, by majority vote,

14  does not approve a proposed fine or suspension, it may not be

15  imposed.

16         (b)  The requirements of this subsection do not apply

17  to the imposition of suspensions or fines upon any member

18  because of the failure of the member to pay assessments or

19  other charges when due if such action is authorized by the

20  governing documents.

21         (c)  Suspension of common-area-use rights shall not

22  impair the right of an owner or tenant of a parcel to have

23  vehicular and pedestrian ingress to and egress from the

24  parcel, including, but not limited to, the right to park.

25         Section 18.  Section 720.3055, Florida Statutes, is

26  created to read:

27         720.3055  Contracts for products and services; in

28  writing; bids; exceptions.--

29         (1)  All contracts as further described in this section

30  or any contract that is not to be fully performed within 1

31  year after the making thereof for the purchase, lease, or


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 1  renting of materials or equipment to be used by the

 2  association in accomplishing its purposes under this chapter

 3  or the governing documents, and all contracts for the

 4  provision of services, shall be in writing. If a contract for

 5  the purchase, lease, or renting of materials or equipment, or

 6  for the provision of services, requires payment by the

 7  association that exceeds 10 percent of the total annual budget

 8  of the association, including reserves, the association must

 9  obtain competitive bids for the materials, equipment, or

10  services. Nothing contained in this section shall be construed

11  to require the association to accept the lowest bid.

12         (2)(a)1.  Notwithstanding the foregoing, contracts with

13  employees of the association, and contracts for attorney,

14  accountant, architect, community association manager,

15  engineering, and landscape architect services are not subject

16  to the provisions of this section.

17         2.  A contract executed before October 1, 2004, and any

18  renewal thereof, is not subject to the competitive bid

19  requirements of this section. If a contract was awarded under

20  the competitive bid procedures of this section, any renewal of

21  that contract is not subject to such competitive bid

22  requirements if the contract contains a provision that allows

23  the board to cancel the contract on 30 days' notice.

24  Materials, equipment, or services provided to an association

25  under a local government franchise agreement by a franchise

26  holder are not subject to the competitive bid requirements of

27  this section. A contract with a manager, if made by a

28  competitive bid, may be made for up to 3 years. An association

29  whose declaration or bylaws provide for competitive bidding

30  for services may operate under the provisions of that

31  declaration or bylaws in lieu of this section if those


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 1  provisions are not less stringent than the requirements of

 2  this section.

 3         (b)  Nothing contained in this section is intended to

 4  limit the ability of an association to obtain needed products

 5  and services in an emergency.

 6         (c)  This section does not apply if the business entity

 7  with which the association desires to enter into a contract is

 8  the only source of supply within the county serving the

 9  association.

10         (d)  Nothing contained in this section shall excuse a

11  party contracting to provide maintenance or management

12  services from compliance with s. 720.309.

13         Section 19.  Present subsections (5) through (8) of

14  section 720.306, Florida Statutes, are renumbered as

15  subsections (7) through (10), respectively, present subsection

16  (7) is amended, and new subsections (5) and (6) are added to

17  that section to read:

18         720.306  Meetings of members; voting and election

19  procedures; amendments.--

20         (5)  NOTICE OF MEETINGS.--The bylaws shall provide for

21  giving notice to members of all member meetings, and if they

22  do not do so shall be deemed to provide the following: The

23  association shall give all parcel owners and members actual

24  notice of all membership meetings, which shall be mailed,

25  delivered, or electronically transmitted to the members not

26  less than 14 days prior to the meeting. Evidence of compliance

27  with this 14-day notice shall be made by an affidavit executed

28  by the person providing the notice and filed upon execution

29  among the official records of the association. In addition to

30  mailing, delivering, or electronically transmitting the notice

31  of any meeting, the association may, by reasonable rule, adopt


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 1  a procedure for conspicuously posting and repeatedly

 2  broadcasting the notice and the agenda on a closed-circuit

 3  cable television system serving the association. When

 4  broadcast notice is provided, the notice and agenda must be

 5  broadcast in a manner and for a sufficient continuous length

 6  of time so as to allow an average reader to observe the notice

 7  and read and comprehend the entire content of the notice and

 8  the agenda.

 9         (6)  RIGHT TO SPEAK.--Members and parcel owners have

10  the right to attend all membership meetings and to speak at

11  any meeting with reference to all items opened for discussion

12  or included on the agenda. Notwithstanding any provision to

13  the contrary in the governing documents or any rules adopted

14  by the board or by the membership, a member and a parcel owner

15  have the right to speak for at least 3 minutes on any item,

16  provided that the member or parcel owner submits a written

17  request to speak prior to the meeting. The association may

18  adopt written reasonable rules governing the frequency,

19  duration, and other manner of member and parcel owner

20  statements, which rules must be consistent with this

21  paragraph.

22         (9)(7)  ELECTIONS.--Elections of directors must be

23  conducted in accordance with the procedures set forth in the

24  governing documents of the association.  All members of the

25  association shall be eligible to serve on the board of

26  directors, and a member may nominate himself or herself as a

27  candidate for the board at a meeting where the election is to

28  be held.  Except as otherwise provided in the governing

29  documents, boards of directors must be elected by a plurality

30  of the votes cast by eligible voters. Any election dispute

31  between a member and an association must be submitted to


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 1  mandatory binding arbitration with the division. Such

 2  proceedings shall be conducted in the manner provided by s.

 3  718.1255 and the procedural rules adopted by the division.

 4         Section 20.  Section 720.311, Florida Statutes, is

 5  amended to read:

 6         720.311  Dispute resolution.--

 7         (1)  The Legislature finds that alternative dispute

 8  resolution has made progress in reducing court dockets and

 9  trials and in offering a more efficient, cost-effective option

10  to litigation. The filing of any petition for mediation or

11  arbitration provided for in this section shall toll the

12  applicable statute of limitations. Any recall dispute filed

13  with the department pursuant to s. 720.303(10) shall be

14  conducted by the department in accordance with the provisions

15  of ss. 718.1255 and 718.112(2)(j) and the rules adopted by the

16  division. In addition, the department shall conduct mandatory

17  binding arbitration of election disputes between a member and

18  an association pursuant to s. 718.1255 and rules adopted by

19  the division. Neither election disputes nor recall disputes

20  are eligible for mediation; these disputes shall be arbitrated

21  by the department. At the conclusion of the proceeding, the

22  department shall charge the parties a fee in an amount

23  adequate to cover all costs and expenses incurred by the

24  department in conducting the proceeding. Initially, the

25  petitioner shall remit a filing fee of at least $200 to the

26  department. The fees paid to the department shall become a

27  recoverable cost in the arbitration proceeding and the

28  prevailing party in an arbitration proceeding shall recover

29  its reasonable costs and attorney's fees in an amount found

30  reasonable by the arbitrator. The department shall adopt rules

31  to effectuate the purposes of this section.


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 1         (2)(a)  Disputes between an association and a parcel

 2  owner regarding use of or changes to the parcel or the common

 3  areas and other covenant enforcement disputes, disputes

 4  regarding amendments to the association documents, disputes

 5  regarding meetings of the board and committees appointed by

 6  the board, membership meetings not including election

 7  meetings, and access to the official records of the

 8  association shall be filed with the department for mandatory

 9  mediation before the dispute is filed in court. Mediation

10  proceedings must be conducted in accordance with the

11  applicable Florida Rules of Civil Procedure, and these

12  proceedings are privileged and confidential to the same extent

13  as court-ordered mediation. An arbitrator or judge may not

14  consider any information or evidence arising from the

15  mediation proceeding except in a proceeding to impose

16  sanctions for failure to attend a mediation session. Persons

17  who are not parties to the dispute may not attend the

18  mediation conference without the consent of all parties,

19  except for counsel for the parties and a corporate

20  representative designated by the association. When mediation

21  is attended by a quorum of the board, such mediation is not a

22  board meeting for purposes of notice and participation set

23  forth in s. 720.303. The department shall conduct the

24  proceedings through the use of department mediators or refer

25  the disputes to private mediators who have been duly certified

26  by the department as provided in paragraph (c). The parties

27  shall share the costs of mediation equally, including the fee

28  charged by the mediator, if any, unless the parties agree

29  otherwise. If a department mediator is used, the department

30  may charge such fee as is necessary to pay expenses of the

31  mediation, including, but not limited to, the salary and


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 1  benefits of the mediator and any travel expenses incurred. The

 2  petitioner shall initially file with the department upon

 3  filing the disputes, a filing fee of $200, which shall be used

 4  to defray the costs of the mediation. At the conclusion of the

 5  mediation, the department shall charge to the parties, to be

 6  shared equally unless otherwise agreed by the parties, such

 7  further fees as are necessary to fully reimburse the

 8  department for all expenses incurred in the mediation.

 9         (b)  If mediation as described in paragraph (a) is not

10  successful in resolving all issues between the parties, the

11  parties may file the unresolved dispute in a court of

12  competent jurisdiction or elect to enter into binding or

13  nonbinding arbitration pursuant to the procedures set forth in

14  s. 718.1255 and rules adopted by the division, with the

15  arbitration proceeding to be conducted by a department

16  arbitrator or by a private arbitrator certified by the

17  department. If all parties do not agree to arbitration

18  proceedings following an unsuccessful mediation, any party may

19  file the dispute in court. A final order resulting from

20  nonbinding arbitration is final and enforceable in the courts

21  if a complaint for trial de novo is not filed in a court of

22  competent jurisdiction within 30 days after entry of the

23  order.

24         (c)  The department shall develop a certification and

25  training program for private mediators and private arbitrators

26  which shall emphasize experience and expertise in the area of

27  the operation of community associations. A mediator or

28  arbitrator shall be certified by the department only if he or

29  she has attended at least 20 hours of training in mediation or

30  arbitration, as appropriate, and only if the applicant has

31  mediated or arbitrated at least 10 disputes involving


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 1  community associations within 5 years prior to the date of the

 2  application, or has mediated or arbitrated 10 disputes in any

 3  area within 5 years prior to the date of application and has

 4  completed 20 hours of training in community association

 5  disputes. In order to be certified by the department, any

 6  mediator must also be certified by the Florida Supreme Court.

 7  The department may conduct the training and certification

 8  program within the department or may contract with an outside

 9  vendor to perform the training or certification. The expenses

10  of operating the training and certification and training

11  program shall be paid by the moneys and filing fees generated

12  by the arbitration of recall and election disputes and by the

13  mediation of those disputes referred to in this subsection and

14  by the training fees.

15         (d)  The mediation procedures provided by this

16  subsection may be used by a Florida corporation responsible

17  for the operation of a community in which the voting members

18  are parcel owners or their representatives, in which

19  membership in the corporation is not a mandatory condition of

20  parcel ownership, or which is not authorized to impose an

21  assessment that may become a lien on the parcel.

22         (3)  The department shall develop an education program

23  to assist homeowners, associations, board members, and

24  managers in understanding and increasing awareness of the

25  operation of homeowners' associations pursuant to chapter 720

26  and in understanding the use of alternative dispute resolution

27  techniques in resolving disputes between parcel owners and

28  associations or between owners. Such education program may

29  include the development of pamphlets and other written

30  instructional guides, the holding of classes and meetings by

31  department employees or outside vendors, as the department


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 1  determines, and the creation and maintenance of a website

 2  containing instructional materials. The expenses of operating

 3  the education program shall be initially paid by the moneys

 4  and filing fees generated by the arbitration of recall and

 5  election disputes and by the mediation of those disputes

 6  referred to in this subsection. At any time after the filing

 7  in a court of competent jurisdiction of a complaint relating

 8  to a dispute under ss. 720.301-720.312, the court may order

 9  that the parties enter mediation or arbitration procedures.

10         Section 21.  Section 689.26, Florida Statutes, is

11  transferred, renumbered as section 720.401, Florida Statutes,

12  and amended to read:

13         720.401 689.26  Prospective purchasers subject to

14  association membership requirement; disclosure required;

15  covenants; assessments; contract cancellation voidability.--

16         (1)(a)  A prospective parcel owner in a community must

17  be presented a disclosure summary before executing the

18  contract for sale.  The disclosure summary must be in a form

19  substantially similar to the following form:

20  

21                        DISCLOSURE SUMMARY

22                                FOR

23                        (NAME OF COMMUNITY)

24  

25         1.  AS A PURCHASER OF PROPERTY IN THIS COMMUNITY, YOU

26  WILL (WILL) (WILL NOT) BE OBLIGATED TO BE A MEMBER OF A

27  HOMEOWNERS' ASSOCIATION.

28         2.  THERE HAVE BEEN OR WILL BE RECORDED RESTRICTIVE

29  COVENANTS GOVERNING THE USE AND OCCUPANCY OF PROPERTIES IN

30  THIS COMMUNITY.

31  


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 1         3.  YOU WILL (WILL) (WILL NOT) BE OBLIGATED TO PAY

 2  ASSESSMENTS TO THE ASSOCIATION. ASSESSMENTS MAY BE SUBJECT TO

 3  PERIODIC CHANGE. IF APPLICABLE, THE CURRENT AMOUNT IS $______

 4  PER ______. YOU WILL ALSO BE OBLIGATED TO PAY ANY SPECIAL

 5  ASSESSMENTS IMPOSED BY THE ASSOCIATION. SUCH SPECIAL

 6  ASSESSMENTS MAY BE SUBJECT TO CHANGE. IF APPLICABLE, THE

 7  CURRENT AMOUNT IS $______ PER ______.

 8         4.  YOU MAY (WILL) (WILL NOT) BE OBLIGATED TO PAY

 9  SPECIAL ASSESSMENTS TO THE RESPECTIVE MUNICIPALITY, COUNTY, OR

10  SPECIAL DISTRICT. ALL ASSESSMENTS ARE SUBJECT TO PERIODIC

11  CHANGE.

12         5.4.  YOUR FAILURE TO PAY SPECIAL ASSESSMENTS OR

13  ASSESSMENTS LEVIED BY A MANDATORY HOMEOWNERS' ASSOCIATION

14  COULD RESULT IN A LIEN ON YOUR PROPERTY.

15         6.5.  THERE MAY BE (IS) (IS NOT) AN OBLIGATION TO PAY

16  RENT OR LAND USE FEES FOR RECREATIONAL OR OTHER COMMONLY USED

17  FACILITIES AS AN OBLIGATION OF MEMBERSHIP IN THE HOMEOWNERS'

18  ASSOCIATION. IF APPLICABLE, THE CURRENT AMOUNT IS $______ PER

19  ______. (If such obligation exists, then the amount of the

20  current obligation shall be set forth.)

21         7.6.  THE DEVELOPER MAY HAVE THE RIGHT TO AMEND THE

22  RESTRICTIVE COVENANTS (CAN) (CANNOT) BE AMENDED WITHOUT THE

23  APPROVAL OF THE ASSOCIATION MEMBERSHIP OR THE APPROVAL OF THE,

24  IF NO MANDATORY ASSOCIATION EXISTS, PARCEL OWNERS.

25         8.7.  THE STATEMENTS CONTAINED IN THIS DISCLOSURE FORM

26  ARE ONLY SUMMARY IN NATURE, AND, AS A PROSPECTIVE PURCHASER,

27  YOU SHOULD REFER TO THE COVENANTS AND THE ASSOCIATION

28  GOVERNING DOCUMENTS BEFORE PURCHASING PROPERTY.

29         9.8.  THESE DOCUMENTS ARE EITHER MATTERS OF PUBLIC

30  RECORD AND CAN BE OBTAINED FROM THE RECORD OFFICE IN THE

31  


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 1  COUNTY WHERE THE PROPERTY IS LOCATED, OR ARE NOT RECORDED AND

 2  CAN BE OBTAINED FROM THE DEVELOPER.

 3  DATE:                                               PURCHASER:

 4                                                      PURCHASER:

 5  

 6  The disclosure must be supplied by the developer, or by the

 7  parcel owner if the sale is by an owner that is not the

 8  developer.  Any contract or agreement for sale shall refer to

 9  and incorporate the disclosure summary and shall include, in

10  prominent language, a statement that the potential buyer

11  should not execute the contract or agreement until they have

12  received and read the disclosure summary required by this

13  section.

14         (b)  Each contract entered into for the sale of

15  property governed by covenants subject to disclosure required

16  by this section must contain in conspicuous type a clause that

17  states:

18  

19         IF THE DISCLOSURE SUMMARY REQUIRED BY SECTION

20         720.401 689.26, FLORIDA STATUTES, HAS NOT BEEN

21         PROVIDED TO THE PROSPECTIVE PURCHASER BEFORE

22         EXECUTING THIS CONTRACT FOR SALE, THIS CONTRACT

23         IS VOIDABLE BY BUYER BY DELIVERING TO SELLER OR

24         SELLER'S AGENT OR REPRESENTATIVE WRITTEN NOTICE

25         OF THE BUYER'S INTENTION TO CANCEL WITHIN 3

26         DAYS AFTER RECEIPT OF THE DISCLOSURE SUMMARY OR

27         PRIOR TO CLOSING, WHICHEVER OCCURS FIRST. ANY

28         PURPORTED WAIVER OF THIS VOIDABILITY RIGHT HAS

29         NO EFFECT. BUYER'S RIGHT TO VOID THIS CONTRACT

30         SHALL TERMINATE AT CLOSING.

31  


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 1         (c)  If the disclosure summary is not provided to a

 2  prospective purchaser before the purchaser executes a contract

 3  for the sale of property governed by covenants that are

 4  subject to disclosure pursuant to this section, the purchaser

 5  may void the contract by delivering to the seller or the

 6  seller's agent or representative written notice canceling the

 7  contract within 3 days after receipt of the disclosure summary

 8  or prior to closing, whichever occurs first. This right may

 9  not be waived by the purchaser but terminates at closing. A

10  contract that does not conform to the requirements of this

11  subsection is voidable at the option of the purchaser prior to

12  closing.

13         (2)  This section does not apply to any association

14  regulated under chapter 718, chapter 719, chapter 721, or

15  chapter 723 or to a subdivider registered under chapter 498;

16  and also does not apply if disclosure regarding the

17  association is otherwise made in connection with the

18  requirements of chapter 718, chapter 719, chapter 721, or

19  chapter 723.

20         Section 22.  Section 689.265, Florida Statutes, is

21  transferred and renumbered as section 720.3086, Florida

22  Statutes, to read:

23         720.3086 689.265  Financial report.--In a residential

24  subdivision in which the owners of lots or parcels must pay

25  mandatory maintenance or amenity fees to the subdivision

26  developer or to the owners of the common areas, recreational

27  facilities, and other properties serving the lots or parcels,

28  the developer or owner of such areas, facilities, or

29  properties shall make public, within 60 days following the end

30  of each fiscal year, a complete financial report of the

31  actual, total receipts of mandatory maintenance or amenity


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 1  fees received by it, and an itemized listing of the

 2  expenditures made by it from such fees, for that year.  Such

 3  report shall be made public by mailing it to each lot or

 4  parcel owner in the subdivision, by publishing it in a

 5  publication regularly distributed within the subdivision, or

 6  by posting it in prominent locations in the subdivision.  This

 7  section does not apply to amounts paid to homeowner

 8  associations pursuant to chapter 617, chapter 718, chapter

 9  719, chapter 721, or chapter 723, or to amounts paid to local

10  governmental entities, including special districts.

11         Section 23.  Paragraphs (g) and (h) of subsection (2)

12  of section 498.025, Florida Statutes, are amended to read:

13         498.025  Exemptions.--

14         (2)  Except as provided in s. 498.022, the provisions

15  of this chapter do not apply to offers or dispositions of

16  interests in lots, parcels, or units contained in a recorded

17  subdivision plat, or resulting from the subdivision of land in

18  accordance with applicable local land development laws and

19  regulations pursuant to part II of chapter 163, including

20  lots, parcels, units, or interest vested under such part, if

21  all of the following conditions exist:

22         (g)  The contract for purchase or lease contains, and

23  the subdivider complies with, the following provisions:

24         1.  The purchaser must inspect the subdivided land

25  prior to the execution of the contract or lease.

26         2.  The purchaser shall have an absolute right to

27  cancel the contract or lease for any reason whatsoever for a

28  period of 7 business days following the date on which the

29  contract or lease was executed by the purchaser.

30         3.  In the event the purchaser elects to cancel within

31  the period provided, all funds or other property paid by the


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 1  purchaser shall be refunded without penalty or obligation

 2  within 20 days of the receipt of the notice of cancellation by

 3  the developer.

 4         4.  All funds or property paid by the purchaser shall

 5  be put in escrow until closing has occurred and the lease or

 6  deed has been recorded.

 7         5.  Unless otherwise timely canceled, closing shall

 8  occur within 180 days of the date of execution of the contract

 9  by the purchaser.

10         6.  When title is conveyed, said title shall be

11  conveyed by statutory warranty deed unencumbered by any lien

12  or mortgage except for any first purchase money mortgage given

13  by the purchaser and restrictions, covenants, or easements of

14  record.

15         7.  The subdivider presents to the purchaser the

16  disclosure required by s. 720.401 s. 689.26 prior to the

17  execution of the contract or lease.

18         (h)  The agreement for deed contains, and the

19  subdivider complies with, the following provisions:

20         1.  The purchaser must inspect the subdivided land

21  prior to the execution of the agreement for deed.

22         2.  The purchaser shall have an absolute right to

23  cancel the agreement for deed for any reason whatsoever for a

24  period of 7 business days following the date on which the

25  agreement for deed was executed by the purchaser.

26         3.  If the purchaser elects to cancel within the period

27  provided, all funds or other property paid by the purchaser

28  shall be refunded without penalty or obligation within 20 days

29  after the receipt of the notice of cancellation by the

30  developer.

31  


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 1         4.  All funds or for property paid by the purchaser

 2  shall be put in escrow until the agreement for deed has been

 3  recorded in the county in which the subdivision is located.

 4         5.  Unless otherwise timely canceled, the agreement for

 5  deed shall be recorded within 180 days after its execution by

 6  the purchaser.

 7         6.  Sale of lots in the subdivision shall be restricted

 8  solely to residents of the state.

 9         7.  The underlying mortgage or other ancillary

10  documents shall contain release provisions for the individual

11  lot purchased.

12         8.  The subdivider presents to the purchaser the

13  disclosure required by s. 720.401 s. 689.26 prior to the

14  execution of the agreement for deed.

15         Section 24.  Section 720.402, Florida Statutes, is

16  created to read:

17         720.402  Publication of false and misleading

18  information.--

19         (1)  Any person who, in reasonable reliance upon any

20  material statement or information that is false or misleading

21  and published by or under authority from the developer in

22  advertising and promotional materials, including, but not

23  limited to, a contract of purchaser, the declaration of

24  covenants, exhibits to a declaration of covenants, brochures,

25  and newspaper advertising, pays anything of value toward the

26  purchase of a parcel in a community located in this state has

27  a cause of action to rescind the contract or collect damages

28  from the developer for his or her loss before the closing of

29  the transaction. After the closing of the transaction, the

30  purchaser has a cause of action against the developer for

31  damages under this section from the time of closing until 1


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 1  year after the date upon which the last of the events

 2  described in paragraphs (a) through (d) occur:

 3         (a)  The closing of the transaction;

 4         (b)  The issuance by the applicable governmental

 5  authority of a certificate of occupancy or other evidence of

 6  sufficient completion of construction of the purchaser's

 7  residence to allow lawful occupancy of the residence by the

 8  purchaser. In counties or municipalities in which certificates

 9  of occupancy or other evidences of completion sufficient to

10  allow lawful occupancy are not customarily issued, for the

11  purpose of this section, evidence of lawful occupancy shall be

12  deemed to be given or issued upon the date that such lawful

13  occupancy of the residence may be allowed under prevailing

14  applicable laws, ordinances, or statutes;

15         (c)  The completion by the developer of the common

16  areas and such recreational facilities, whether or not the

17  same are common areas, which the developer is obligated to

18  complete or provide under the terms of the written contract,

19  governing documents, or written agreement for purchase or

20  lease of the parcel; or

21         (d)  In the event there is not a written contract or

22  agreement for sale or lease of the parcel, then the completion

23  by the developer of the common areas and such recreational

24  facilities, whether or not they are common areas, which the

25  developer would be obligated to complete under any rule of law

26  applicable to the developer's obligation.

27  

28  Under no circumstances may a cause of action created or

29  recognized under this section survive for a period of more

30  than 5 years after the closing of the transaction.

31  


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 1         (2)  In any action for relief under this section, the

 2  prevailing party may recover reasonable attorney's fees. A

 3  developer may not expend association funds in the defense of

 4  any suit under this section.

 5         Section 25.  Subsection (1) of section 34.01, Florida

 6  Statutes, is amended to read:

 7         34.01  Jurisdiction of county court.--

 8         (1)  County courts shall have original jurisdiction:

 9         (a)  In all misdemeanor cases not cognizable by the

10  circuit courts;

11         (b)  Of all violations of municipal and county

12  ordinances; and

13         (c)  Of all actions at law in which the matter in

14  controversy does not exceed the sum of $15,000, exclusive of

15  interest, costs, and attorney's fees, except those within the

16  exclusive jurisdiction of the circuit courts. The party

17  instituting any civil action, suit, or proceeding pursuant to

18  this paragraph where the amount in controversy is in excess of

19  $5,000 shall pay to the clerk of the county court the filing

20  fees and service charges in the same amounts and in the same

21  manner as provided in s. 28.241; and.

22         (d)  Of disputes occurring in the homeowners'

23  associations as described in s. 720.311(2)(a), which shall be

24  concurrent with jurisdiction of the circuit courts.

25         Section 26.  Paragraph (a) of subsection (1) of section

26  316.00825, Florida Statutes, is amended to read:

27         316.00825  Closing and abandonment of roads; optional

28  conveyance to homeowners' association; traffic control

29  jurisdiction.--

30         (1)(a)  In addition to the authority provided in s.

31  336.12, the governing body of the county may abandon the roads


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 1  and rights-of-way dedicated in a recorded residential

 2  subdivision plat and simultaneously convey the county's

 3  interest in such roads, rights-of-way, and appurtenant

 4  drainage facilities to a homeowners' association for the

 5  subdivision, if the following conditions have been met:

 6         1.  The homeowners' association has requested the

 7  abandonment and conveyance in writing for the purpose of

 8  converting the subdivision to a gated neighborhood with

 9  restricted public access.

10         2.  No fewer than four-fifths of the owners of record

11  of property located in the subdivision have consented in

12  writing to the abandonment and simultaneous conveyance to the

13  homeowners' association.

14         3.  The homeowners' association is both a corporation

15  not for profit organized and in good standing under chapter

16  617, and a "homeowners' association" as  defined in s.

17  720.301(9) s. 720.301(7) with the power to levy and collect

18  assessments for routine and periodic major maintenance and

19  operation of street lighting, drainage, sidewalks, and

20  pavement in the subdivision.

21         4.  The homeowners' association has entered into and

22  executed such agreements, covenants, warranties, and other

23  instruments; has provided, or has provided assurance of, such

24  funds, reserve funds, and funding sources; and has satisfied

25  such other requirements and conditions as may be established

26  or imposed by the county with respect to the ongoing

27  operation, maintenance, and repair and the periodic

28  reconstruction or replacement of the roads, drainage, street

29  lighting, and sidewalks in the subdivision after the

30  abandonment by the county.

31  


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 1         Section 27.  Subsection (2) of section 558.002, Florida

 2  Statutes, is amended to read:

 3         558.002  Definitions.--As used in this act, the term:

 4         (2)  "Association" has the same meaning as in s.

 5  718.103(2), s. 719.103(2), s. 720.301(9) s. 720.301(7), or s.

 6  723.025.

 7         Section 28.  The Division of Statutory Revision is

 8  requested to designate sections 720.301-720.312, Florida

 9  Statutes, as part I of chapter 720, Florida Statutes; to

10  designate sections 720.401 and 720.402, Florida Statutes, as

11  part II of chapter 720, Florida Statutes, and entitle that

12  part "DISCLOSURE PRIOR TO SALE OF RESIDENTIAL PARCELS"; to

13  designate sections 720.403-720.407 as part III of chapter 720,

14  Florida Statutes, and entitle that part "COVENANT

15  REVITALIZATION"; and to designate section 720.501, Florida

16  Statutes, as part IV of chapter 720, Florida Statutes, and

17  entitle that part "RIGHTS AND OBLIGATIONS OF DEVELOPERS."

18         Section 29.  If any provision of this act or its

19  application to any person or circumstance is held invalid, the

20  invalidity does not affect other provisions or applications of

21  this act which can be given effect without the invalid

22  provision or application, and to this end the provisions of

23  this act are declared severable.

24         Section 30.  Subsection (4) is added to section

25  190.012, Florida Statutes, to read:

26         190.012  Special powers; public improvements and

27  community facilities.--The district shall have, and the board

28  may exercise, subject to the regulatory jurisdiction and

29  permitting authority of all applicable governmental bodies,

30  agencies, and special districts having authority with respect

31  to any area included therein, any or all of the following


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 1  special powers relating to public improvements and community

 2  facilities authorized by this act:

 3         (4)(a)  To adopt rules necessary for the district to

 4  enforce certain deed restrictions pertaining to the use and

 5  operation of real property within the district. For the

 6  purpose of this subsection, "deed restrictions" are those

 7  covenants, conditions, and restrictions contained in any

 8  applicable declarations of covenants and restrictions that

 9  govern the use and operation of real property within the

10  district and, for which covenants, conditions, and

11  restrictions, there is no homeowners' association or property

12  owner's association having respective enforcement powers. The

13  district may adopt by rule all or certain portions of the deed

14  restrictions that:

15         1.  Relate to limitations or prohibitions that apply

16  only to external structures and are deemed by the district to

17  be generally beneficial for the district's landowners and for

18  which enforcement by the district is appropriate, as

19  determined by the district's board of supervisors; or

20         2.  Are consistent with the requirements of a

21  development order or regulatory agency permit.

22         (b)  The board may vote to adopt such rules only when

23  all of the following conditions exist:

24         1.  The district's geographic area contains no

25  homeowners' associations as defined in s. 720.301(7);

26         2.  The district was in existence on the effective date

27  of this subsection, or is located within a development that

28  consists of multiple developments of regional impact and a

29  Florida Quality Development;

30  

31  


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 1         3.  The majority of the board has been elected by

 2  qualified electors pursuant to the provisions of s. 190.006;

 3  and

 4         4.  The declarant in any applicable declarations of

 5  covenants and restrictions has provided the board with a

 6  written agreement that such rules may be adopted. A memorandum

 7  of the agreement shall be recorded in the public records.

 8         (c)  Within 60 days after such rules taking effect, the

 9  district shall record a notice of rule adoption stating

10  generally what rules were adopted and where a copy of the

11  rules may be obtained. Districts may impose fines for

12  violations of such rules and enforce such rules and fines in

13  circuit court through injunctive relief.

14         Section 31.  Section 190.046, Florida Statutes, is

15  amended to read:

16         190.046  Termination, contraction, or expansion of

17  district.--

18         (1)  The board may petition to contract or expand the

19  boundaries of a community development district in the

20  following manner:

21         (a)  The petition shall contain the same information

22  required by s. 190.005(1)(a)1. and 8.  In addition, if the

23  petitioner seeks to expand the district, the petition shall

24  describe the proposed timetable for construction of any

25  district services to the area, the estimated cost of

26  constructing the proposed services, and the designation of the

27  future general distribution, location, and extent of public

28  and private uses of land proposed for the area by the future

29  land use plan element of the adopted local government local

30  comprehensive plan.  If the petitioner seeks to contract the

31  district, the petition shall describe what services and


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 1  facilities are currently provided by the district to the area

 2  being removed, and the designation of the future general

 3  distribution, location, and extent of public and private uses

 4  of land proposed for the area by the future land element of

 5  the adopted local government comprehensive plan.

 6         (b)  For those districts initially established by

 7  county ordinance, the petition for ordinance amendment shall

 8  be filed with the county commission.  If the land to be

 9  included or excluded is, in whole or in part, within the

10  boundaries of a municipality, then the county commission shall

11  not amend the ordinance without municipal approval.  A public

12  hearing shall be held in the same manner and with the same

13  public notice as other ordinance amendments.  The county

14  commission shall consider the record of the public hearing and

15  the factors set forth in s. 190.005(1)(e) in making its

16  determination to grant or deny the petition for ordinance

17  amendment.

18         (c)  For those districts initially established by

19  municipal ordinance pursuant to s. 190.005(2)(e), the

20  municipality shall assume the duties of the county commission

21  set forth in paragraph (b); however, if any of the land to be

22  included or excluded, in whole or in part, is outside the

23  boundaries of the municipality, then the municipality shall

24  not amend its ordinance without county commission approval.

25         (d)1.  For those districts initially established by

26  administrative rule pursuant to s. 190.005(1), the petition

27  shall be filed with the Florida Land and Water Adjudicatory

28  Commission.

29         2.  Prior to filing the petition, the petitioner shall

30  pay a filing fee of $1,500 to the county and to each

31  municipality the boundaries of which are contiguous with or


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 1  contain all or a portion of the land within the district or

 2  the proposed amendment, and submit a copy of the petition to

 3  the county and to each such municipality.  In addition, if the

 4  district is not the petitioner, the petitioner shall file the

 5  petition with the district board of supervisors.

 6         3.  The county and each municipality shall have the

 7  option of holding a public hearing as provided by s.

 8  190.005(1)(c). However, such public hearing shall be limited

 9  to consideration of the contents of the petition and whether

10  the petition for amendment should be supported by the county

11  or municipality.

12         4.  The district board of supervisors shall, in lieu of

13  a hearing officer, hold the local public hearing provided for

14  by s. 190.005(1)(d).  This local public hearing shall be

15  noticed in the same manner as provided in s. 190.005(1)(d).

16  Within 45 days of the conclusion of the hearing, the district

17  board of supervisors shall transmit to the Florida Land and

18  Water Adjudicatory Commission the full record of the local

19  hearing, the transcript of the hearing, any resolutions

20  adopted by the local general-purpose governments, and its

21  recommendation whether to grant the petition for amendment.

22  The commission shall then proceed in accordance with s.

23  190.005(1)(e).

24         5.  A rule amending a district boundary shall describe

25  the land to be added or deleted.

26         (e)  In all cases, written consent of all the

27  landowners whose land is to be added to or deleted from the

28  district shall be required. The filing of the petition for

29  expansion or contraction by the district board of supervisors

30  shall constitute consent of the landowners within the district

31  


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 1  other than of landowners whose land is proposed to be added to

 2  or removed from the district.

 3         (f)1.  During the existence of a district initially

 4  established by administrative rule, petitions to amend the

 5  boundaries of the district pursuant to paragraphs (a)-(e)

 6  shall be limited to a cumulative total of no more than 10

 7  percent of the land in the initial district, and in no event

 8  shall all such petitions to amend the boundaries ever

 9  encompass more than a total of 250 acres.

10         2.  For districts initially established by county or

11  municipal ordinance, the limitation provided by this paragraph

12  shall be a cumulative total of no more than 50 percent of the

13  land in the initial district, and in no event shall all such

14  petitions to amend the boundaries ever encompass more than a

15  total of 500 acres.

16         3.  Boundary expansions for districts initially

17  established by county or municipal ordinance shall follow the

18  procedure set forth in paragraph (b) or paragraph (c).

19         (g)  Petitions to amend the boundaries of the district

20  which exceed the amount of land specified in paragraph (f)

21  shall be considered petitions to establish a new district and

22  shall follow all of the procedures specified in s. 190.005.

23         (2)  The district shall remain in existence unless:

24         (a)  The district is merged with another district as

25  provided in subsection (3);

26         (b)  All of the specific community development systems,

27  facilities, and services that it is authorized to perform have

28  been transferred to a general-purpose unit of local government

29  in the manner provided in subsections (4), (5), and (6); or

30         (c)  The district is dissolved as provided in

31  subsection (7), or subsection (8), or subsection (9).


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 1         (3)  The district may merge with other community

 2  development districts upon filing a petition for establishment

 3  of a community development district pursuant to s. 190.005 or

 4  may merge with any other special districts upon filing a

 5  petition for establishment of a community development district

 6  pursuant to s. 190.005.  The government formed by a merger

 7  involving a community development district pursuant to this

 8  section shall assume all indebtedness of, and receive title

 9  to, all property owned by the preexisting special districts.

10  Prior to filing said petition, the districts desiring to merge

11  shall enter into a merger agreement and shall provide for the

12  proper allocation of the indebtedness so assumed and the

13  manner in which said debt shall be retired. The approval of

14  the merger agreement by the board of supervisors elected by

15  the electors of the district shall constitute consent of the

16  landowners within the district.

17         (4)  The local general-purpose government within the

18  geographical boundaries of which the district lies may adopt a

19  nonemergency ordinance providing for a plan for the transfer

20  of a specific community development service from a district to

21  the local general-purpose government.  The plan must provide

22  for the assumption and guarantee of the district debt that is

23  related to the service by the local general-purpose government

24  and must demonstrate the ability of the local general-purpose

25  government to provide such service:

26         (a)  As efficiently as the district.

27         (b)  At a level of quality equal to or higher than the

28  level of quality actually delivered by the district to the

29  users of the service.

30         (c)  At a charge equal to or lower than the actual

31  charge by the district to the users of the service.


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 1         (5)  No later than 30 days following the adoption of a

 2  transfer plan ordinance, the board of supervisors may file, in

 3  the circuit court for the county in which the local

 4  general-purpose government that adopted the ordinance is

 5  located, a petition seeking review by certiorari of the

 6  factual and legal basis for the adoption of the transfer plan

 7  ordinance.

 8         (6)  Upon the transfer of all of the community

 9  development services of the district to a general-purpose unit

10  of local government, the district shall be terminated in

11  accordance with a plan of termination which shall be adopted

12  by the board of supervisors and filed with the clerk of the

13  circuit court.

14         (7)  If, within 5 years after the effective date of the

15  rule or ordinance establishing creating the district, a

16  landowner has not received a development permit, as defined in

17  chapter 380, on some part or all of the area covered by the

18  district, then the district will be automatically dissolved

19  and a judge of the circuit court shall cause a statement to

20  that effect to be filed in the public records.

21         (8)  In the event the district has become inactive

22  pursuant to s. 189.4044, the respective board of county

23  commissioners or city commission shall be informed and it

24  shall take appropriate action.

25         (9)  If a district has no outstanding financial

26  obligations and no operating or maintenance responsibilities,

27  upon the petition of the district, the district may be

28  dissolved by a nonemergency ordinance of the general-purpose

29  local governmental entity that established the district or, if

30  the district was established by rule of the Florida Land and

31  


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 1  Water Adjudicatory Commission, the district may be dissolved

 2  by repeal of such rule of the commission.

 3         Section 32.  Section 190.006, Florida Statutes, is

 4  amended to read:

 5         190.006  Board of supervisors; members and meetings.--

 6         (1)  The board of the district shall exercise the

 7  powers granted to the district pursuant to this act. The board

 8  shall consist of five members; except as otherwise provided

 9  herein, each member shall hold office for a term of 2 years or

10  4 years, as provided in this section, and until a successor is

11  chosen and qualifies.  The members of the board must be

12  residents of the state and citizens of the United States.

13         (2)(a)  Within 90 days following the effective date of

14  the rule or ordinance establishing the district, there shall

15  be held a meeting of the landowners of the district for the

16  purpose of electing five supervisors for the district.  Notice

17  of the landowners' meeting shall be published once a week for

18  2 consecutive weeks in a newspaper which is in general

19  circulation in the area of the district, the last day of such

20  publication to be not fewer than 14 days or more than 28 days

21  before the date of the election.  The landowners, when

22  assembled at such meeting, shall organize by electing a chair

23  who shall conduct the meeting. The chair may be any person

24  present at the meeting. If the chair is a landowner or proxy

25  holder of a landowner, he or she may nominate candidates and

26  make and second motions.

27         (b)  At such meeting, each landowner shall be entitled

28  to cast one vote per acre of land owned by him or her and

29  located within the district for each person to be elected.  A

30  landowner may vote in person or by proxy in writing. Each

31  proxy must be signed by one of the legal owners of the


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 1  property for which the vote is cast and must contain the typed

 2  or printed name of the individual who signed the proxy; the

 3  street address, legal description of the property, or tax

 4  parcel identification number; and the number of authorized

 5  votes. If the proxy authorizes more than one vote, each

 6  property must be listed and the number of acres of each

 7  property must be included. The signature on a proxy need not

 8  be notarized. A fraction of an acre shall be treated as 1

 9  acre, entitling the landowner to one vote with respect

10  thereto.  The two candidates receiving the highest number of

11  votes shall be elected for a period of 4 years, and the three

12  candidates receiving the next largest number of votes shall be

13  elected for a period of 2 years, with the term of office for

14  each successful candidate commencing upon election. The

15  members of the first board elected by landowners shall serve

16  their respective 4-year or 2-year terms; however, the next

17  election by landowners shall be held on the first Tuesday in

18  November. Thereafter, there shall be an election of

19  supervisors for the district every 2 years in November on a

20  date established by the board and noticed pursuant to

21  paragraph (a). The second and subsequent landowners' election

22  shall be announced at a public meeting of the board at least

23  90 days prior to the date of the landowners' meeting and shall

24  also be noticed pursuant to paragraph (a). Instructions on how

25  all landowners may participate in the election, along with

26  sample proxies, shall be provided during the board meeting

27  that announces the landowners' meeting. The two candidates

28  receiving the highest number of votes shall be elected to

29  serve for a 4-year period, and the remaining candidate elected

30  shall serve for a 2-year period.

31  


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 1         (3)(a)1.  If the board proposes to exercise the ad

 2  valorem taxing power authorized by s. 190.021, the district

 3  board shall call an election at which the members of the board

 4  of supervisors will be elected.  Such election shall be held

 5  in conjunction with a primary or general election unless the

 6  district bears the cost of a special election.  Each member

 7  shall be elected by the qualified electors of the district for

 8  a term of 4 years, except that, at the first such election,

 9  three members shall be elected for a period of 4 years and two

10  members shall be elected for a period of 2 years.  All elected

11  board members must be qualified electors of the district.

12         2.a.  Regardless of whether a district has proposed to

13  levy ad valorem taxes, commencing 6 years after the initial

14  appointment of members or, for a district exceeding 5,000

15  acres in area, 10 years after the initial appointment of

16  members, the position of each member whose term has expired

17  shall be filled by a qualified elector of the district,

18  elected by the qualified electors of the district.  However,

19  for those districts established after June 21, 1991, and for

20  those existing districts established after December 31, 1983,

21  which have less than 50 qualified electors on June 21, 1991,

22  sub-subparagraphs b. and d. c. shall apply.

23         b.  For those districts to which this sub-subparagraph

24  applies If, in the 6th year after the initial appointment of

25  members, or 10 years after such initial appointment for

26  districts exceeding 5,000 acres in area, there are not at

27  least 250 qualified electors in the district, or for a

28  district exceeding 5,000 acres, there are not at least 500

29  qualified electors, members of the board shall continue to be

30  elected by landowners.

31  


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 1         b.  After the 6th or 10th year, once a district reaches

 2  250 or 500 qualified electors, respectively, then the

 3  positions position of two board members whose terms are

 4  expiring shall be filled by qualified electors of the

 5  district, elected by the qualified electors of the district

 6  for 4-year terms.  One of these board members shall serve a

 7  2-year term, and the other a 4-year term.  The remaining board

 8  member whose term is expiring shall be elected for a 4-year

 9  term by the landowners and is not required to be a qualified

10  elector. Thereafter, as terms expire, board members shall be

11  qualified electors elected by qualified electors of the

12  district for a term of 4 years.

13         c.  Once a district qualifies to have any of its board

14  members elected by the qualified electors of the district, the

15  initial and all subsequent elections by the qualified electors

16  of the district shall be held at the general election in

17  November. The board shall adopt a resolution if necessary to

18  implement this requirement when the board determines the

19  number of qualified electors as required by sub-subparagraph

20  d., to extend or reduce the terms of current board members.

21         d.c.  On or before June 1 July 15 of each year, the

22  board shall determine the number of qualified electors in the

23  district as of the immediately preceding April 15 June 1.  The

24  board shall use and rely upon the official records maintained

25  by the supervisor of elections and property appraiser or tax

26  collector in each county in making this determination.  Such

27  determination shall be made at a properly noticed meeting of

28  the board and shall become a part of the official minutes of

29  the district.

30         (b)  Elections of board members by qualified electors

31  held pursuant to this subsection shall be nonpartisan and


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 1  shall be conducted in the manner prescribed by law for holding

 2  general elections. Board members shall assume the office on

 3  the second Tuesday following their election.

 4         (c)  Candidates seeking election to office by qualified

 5  electors under this subsection shall conduct their campaigns

 6  in accordance with the provisions of chapter 106 and shall

 7  file qualifying papers and qualify for individual seats in

 8  accordance with s. 99.061. Candidates shall pay a qualifying

 9  fee, which shall consist of a filing fee and an election

10  assessment or, as an alternative, shall file a petition signed

11  by not less than 1 percent of the registered voters of the

12  district, Candidates shall file petitions, and take the oath

13  required in s. 99.021, with the supervisor of elections in the

14  county affected by such candidacy. The amount of the filing

15  fee is 3 percent of $4,800; however, if the electors have

16  provided for compensation pursuant to subsection (8), the

17  amount of the filing fee is 3 percent of the maximum annual

18  compensation so provided. The amount of the election

19  assessment is 1 percent of $4,800; however, if the electors

20  have provided for compensation pursuant to subsection (8), the

21  amount of the election assessment is 1 percent of the maximum

22  annual compensation so provided. The filing fee and election

23  assessment shall be distributed as provided in s. 105.031(3).

24         (d)  The supervisor of elections shall appoint the

25  inspectors and clerks of elections, prepare and furnish the

26  ballots, designate polling places, and canvass the returns of

27  the election of board members by qualified electors.  The

28  county canvassing board of county commissioners shall declare

29  and certify the results of the election.

30         (4)  Members of the board shall be known as supervisors

31  and, upon entering into office, shall take and subscribe to


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 1  the oath of office as prescribed by s. 876.05.  They shall

 2  hold office for the terms for which they were elected or

 3  appointed and until their successors are chosen and qualified.

 4  If, during the term of office, a vacancy occurs, the remaining

 5  members of the board shall fill the vacancy by an appointment

 6  for the remainder of the unexpired term.

 7         (5)  A majority of the members of the board constitutes

 8  a quorum for the purposes of conducting its business and

 9  exercising its powers and for all other purposes.  Action

10  taken by the district shall be upon a vote of a majority of

11  the members present unless general law or a rule of the

12  district requires a greater number.

13         (6)  As soon as practicable after each election or

14  appointment, the board shall organize by electing one of its

15  members as chair and by electing a secretary, who need not be

16  a member of the board, and such other officers as the board

17  may deem necessary.

18         (7)  The board shall keep a permanent record book

19  entitled "Record of Proceedings of ...(name of district)...

20  Community Development District," in which shall be recorded

21  minutes of all meetings, resolutions, proceedings,

22  certificates, bonds given by all employees, and any and all

23  corporate acts.  The record book shall at reasonable times be

24  opened to inspection in the same manner as state, county, and

25  municipal records pursuant to chapter 119.  The record book

26  shall be kept at the office or other regular place of business

27  maintained by the board in the county or municipality in which

28  the district is located or within the boundaries of a

29  development of regional impact or Florida Quality Development,

30  or combination of a development of regional impact and Florida

31  Quality Development, which includes the district.


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 1         (8)  Each supervisor shall be entitled to receive for

 2  his or her services an amount not to exceed $200 per meeting

 3  of the board of supervisors, not to exceed $4,800 per year per

 4  supervisor, or an amount established by the electors at

 5  referendum.  In addition, each supervisor shall receive travel

 6  and per diem expenses as set forth in s. 112.061.

 7         (9)  All meetings of the board shall be open to the

 8  public and governed by the provisions of chapter 286.

 9         Section 33.  This act shall take effect upon becoming a

10  law, except sections 1 through 16, which shall take effect

11  October 1, 2004.

12  

13  

14  

15  

16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

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