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Amendment CaShTmL-324514.HTM
    Florida Senate - 2007                      COMMITTEE AMENDMENT
    Bill No. SB 902
                        Barcode 324514
                            CHAMBER ACTION
              Senate                               House
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 1           Comm: RCS             .                    
       03/07/2007 12:06 PM         .                    
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11  The Committee on Regulated Industries (Jones) recommended the
12  following amendment:
13  
14         Senate Amendment (with title amendment) 
15         Delete everything after the enacting clause
16  
17  and insert:  
18         Section 1.  Section 712.11, Florida Statutes, is
19  created to read:
20         712.11  Covenant revitalization.--A homeowners'
21  association not otherwise subject to chapter 720 may use the
22  procedures set forth in ss. 720.403-720.407 to revive
23  covenants that have lapsed under the terms of this chapter.
24         Section 2.  Subsection (5) is added to section 718.106,
25  Florida Statutes, to read:
26         718.106  Condominium parcels; appurtenances; possession
27  and enjoyment.--
28         (5)  A local government may not prohibit condominium
29  unit owners or an association from permitting guests,
30  licensees, or invitees access to a public beach adjacent to or
31  adjoining the condominium property.
                                  1
    2:12 PM   03/05/07                              s0902.ri13.001

Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 Section 3. Effective October 1, 2007, subsection (11) 2 of section 718.110, Florida Statutes, is amended to read: 3 718.110 Amendment of declaration; correction of error 4 or omission in declaration by circuit court.-- 5 (11) The Legislature finds that the procurement of 6 mortgagee consent to amendments that do not affect the rights 7 or interests of mortgagees is an unreasonable and substantial 8 logistical and financial burden on the unit owners and that 9 there is a compelling state interest in enabling the members 10 of a condominium association to approve amendments to the 11 condominium documents through legal means. Accordingly, and 12 notwithstanding any provision to the contrary contained in 13 this section: 14 (a) As to any mortgage recorded on or after October 1, 15 2007, any provision in the declaration, articles of 16 incorporation, or bylaws that requires recorded after April 1, 17 1992, may not require the consent or joinder of some or all 18 mortgagees of units or any other portion of the condominium 19 property to or in amendments to the declaration, articles of 20 incorporation, or bylaws or for any other matter shall be 21 enforceable only as to the following matters: unless the 22 requirement is limited to amendments materially affecting the 23 rights or interests of the mortgagees, or as otherwise 24 required by the Federal National Mortgage Association or the 25 Federal Home Loan Mortgage Corporation, and unless the 26 requirement provides that such consent may not be unreasonably 27 withheld. It shall be presumed that, except as to 28 1. Those matters described in subsections (4) and 29 (8)., 30 2. Amendments to the declaration, articles of 31 incorporation, or bylaws that adversely affect the priority of 2 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 the mortgagee's lien or the mortgagee's rights to foreclose 2 its lien or that otherwise materially affect the rights and 3 interests of the mortgagees. 4 (b) As to mortgages recorded before October 1, 2007, 5 any existing provisions in the declaration, articles of 6 incorporation, or bylaws requiring mortgagee consent shall be 7 enforceable. 8 (c) In securing consent or joinder, the association 9 shall be entitled to rely upon the public records to identify 10 the holders of outstanding mortgages. The association may use 11 the address provided in the original recorded mortgage 12 document, unless there is a different address for the holder 13 of the mortgage in a recorded assignment or modification of 14 the mortgage, which recorded assignment or modification must 15 reference the official records book and page on which the 16 original mortgage was recorded. Once the association has 17 identified the recorded mortgages of record, the association 18 shall, in writing, request of each unit owner whose unit is 19 encumbered by a mortgage of record any information the owner 20 has in his or her possession regarding the name and address of 21 the person to whom mortgage payments are currently being made. 22 Notice shall be sent to such person if the address provided in 23 the original recorded mortgage document is different from the 24 name and address of the mortgagee or assignee of the mortgage 25 as shown by the public record. The association shall be deemed 26 to have complied with this requirement by making the written 27 request of the unit owners required under this paragraph. Any 28 notices required to be sent to the mortgagees under this 29 paragraph shall be sent to all available addresses provided to 30 the association. 31 (d) Any notice to the mortgagees required under 3 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 paragraph (c) may be sent by a method that establishes proof 2 of delivery, and any mortgagee who fails to respond within 60 3 days after the date of mailing shall be deemed to have 4 consented to the amendment. 5 (e) For those amendments requiring mortgagee consent 6 on or after October 1, 2007, do not materially affect the 7 rights or interests of mortgagees. in the event mortgagee 8 consent is provided other than by properly recorded joinder, 9 such consent shall be evidenced by affidavit of the 10 association recorded in the public records of the county where 11 the declaration is recorded. Any amendment adopted without the 12 required consent of a mortgagee shall be voidable only by a 13 mortgagee who was entitled to notice and an opportunity to 14 consent. An action to void an amendment shall be subject to 15 the statute of limitations beginning 5 years after the date of 16 discovery as to the amendments described in subparagraphs 17 (a)1. and 2. and 5 years after the date of recordation of the 18 certificate of amendment for all other amendments. This 19 provision shall apply to all mortgages, regardless of the date 20 of recordation of the mortgage. 21 (f) Notwithstanding the provisions of this section, 22 any amendment or amendments to conform a declaration of 23 condominium to the insurance coverage provisions in s. 24 718,111(11), may be made as provided in that section. 25 Section 4. Section 718.114, Florida Statutes, is 26 amended to read: 27 718.114 Association powers.--An association has the 28 power to enter into agreements, to acquire leaseholds, 29 memberships, and other possessory or use interests in lands or 30 facilities such as country clubs, golf courses, marinas, and 31 other recreational facilities. It has this power whether or 4 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 not the lands or facilities are contiguous to the lands of the 2 condominium, if they are intended to provide enjoyment, 3 recreation, or other use or benefit to the unit owners. All of 4 these leaseholds, memberships, and other possessory or use 5 interests existing or created at the time of recording the 6 declaration must be stated and fully described in the 7 declaration. Subsequent to the recording of the declaration, 8 agreements acquiring these leaseholds, memberships, or other 9 possessory or use interests not entered into within 12 months 10 following the recording of the declaration shall be considered 11 a material alteration or substantial addition to the real 12 property that is association property, and the association may 13 not acquire or enter into agreements acquiring these 14 leaseholds, memberships, or other possessory or use interests 15 except as authorized by the declaration as provided in s. 16 718.113. The declaration may provide that the rental, 17 membership fees, operations, replacements, and other expenses 18 are common expenses and may impose covenants and restrictions 19 concerning their use and may contain other provisions not 20 inconsistent with this chapter. A condominium association may 21 conduct bingo games as provided in s. 849.0931. 22 Section 5. Subsections (1) and (2) of section 718.404, 23 Florida Statutes, are amended to read: 24 718.404 Mixed-use condominiums.--When a condominium 25 consists of both residential and commercial units, the 26 following provisions shall apply: 27 (1) The condominium documents shall not provide that 28 the owner of any commercial unit shall have the authority to 29 veto amendments to the declaration, articles of incorporation, 30 bylaws, or rules or regulations of the association. This 31 subsection shall apply retroactively as a remedial measure. 5 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 (2) Subject to s. 718.301, where the number of 2 residential units in the condominium equals or exceeds 50 3 percent of the total units operated by the association, owners 4 of the residential units shall be entitled to vote for a 5 majority of the seats on the board of administration. This 6 subsection shall apply retroactively as a remedial measure. 7 Section 6. Subsections (18) through (27) of section 8 719.103, Florida Statutes, are renumbered as subsections (19) 9 through (28), respectively, and a new subsection (18) is added 10 to that section to read: 11 719.103 Definitions.--As used in this chapter: 12 (18) "Equity facilities club" means a club comprised 13 of recreational facilities in which proprietary membership 14 interests are sold to individuals, which membership interests 15 entitle the individuals to use certain physical facilities 16 owned by the equity club. Such physical facilities do not 17 include a residential unit or accommodation. For purposes of 18 this definition, the term "accommodation" shall include, but 19 is not limited to, any apartment, residential cooperative 20 unit, residential condominium unit, cabin, lodge, hotel or 21 motel room, or other accommodation designed for overnight 22 occupancy for one or more individuals. 23 Section 7. Section 719.507, Florida Statutes, is 24 amended to read: 25 719.507 Zoning and building laws, ordinances, and 26 regulations.--All laws, ordinances, and regulations concerning 27 buildings or zoning shall be construed and applied with 28 reference to the nature and use of such property, without 29 regard to the form of ownership. No law, ordinance, or 30 regulation shall establish any requirement concerning the use, 31 location, placement, or construction of buildings or other 6 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 improvements which are, or may thereafter be, subjected to the 2 cooperative or equity facilities club form of ownership, 3 unless such requirement shall be equally applicable to all 4 buildings and improvements of the same kind not then, or 5 thereafter to be, subjected to the cooperative or equity 6 facilities club form of ownership. This section does not apply 7 if the owner in fee of any land enters into and records a 8 covenant that existing improvements or improvements to be 9 constructed shall not be converted to the cooperative form of 10 residential ownership prior to 5 years after the later of the 11 date of the covenant or completion date of the improvements. 12 Such covenant shall be entered into with the governing body of 13 the municipality in which the land is located or, if the land 14 is not located in a municipality, with the governing body of 15 the county in which the land is located. 16 Section 8. Subsections (4) and (5) of section 720.302, 17 Florida Statutes, are amended to read: 18 720.302 Purposes, scope, and application.-- 19 (4) This chapter does not apply to any association 20 that is subject to regulation under chapter 718, chapter 719, 21 or chapter 721; or to any nonmandatory association formed 22 under chapter 723, except to the extent that a provision of 23 chapter 718, chapter 719, or chapter 721 is expressly 24 incorporated into this chapter for the purpose of regulating 25 homeowners' associations. 26 (5) Unless expressly stated to the contrary, 27 corporations not for profit that operate residential 28 homeowners' associations in this state shall be governed by 29 and subject to chapter 607, if the association was 30 incorporated under that chapter, or to chapter 617, if the 31 association was incorporated under that chapter, and this 7 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 chapter. This subsection is intended to clarify existing law. 2 Section 9. Subsections (2), (6), and (7) of section 3 720.303, Florida Statutes, are amended, and paragraph (d) is 4 added to subsection (5) of that section, to read: 5 720.303 Association powers and duties; meetings of 6 board; official records; budgets; financial reporting; 7 association funds; recalls.-- 8 (2) BOARD MEETINGS.-- 9 (a) A meeting of the board of directors of an 10 association occurs whenever a quorum of the board gathers to 11 conduct association business. All meetings of the board must 12 be open to all members except for meetings between the board 13 and its attorney with respect to proposed or pending 14 litigation where the contents of the discussion would 15 otherwise be governed by the attorney-client privilege. The 16 provisions of this subsection shall also apply to the meetings 17 of any committee or other similar body when a final decision 18 will be made regarding the expenditure of association funds 19 and to meetings of any body vested with the power to approve 20 or disapprove architectural decisions with respect to a 21 specific parcel of residential property owned by a member of 22 the community. 23 (b) Members have the right to attend all meetings of 24 the board and to speak on any matter placed on the agenda by 25 petition of the voting interests for at least 3 minutes. The 26 association may adopt written reasonable rules expanding the 27 right of members to speak and governing the frequency, 28 duration, and other manner of member statements, which rules 29 must be consistent with this paragraph and may include a 30 sign-up sheet for members wishing to speak. Notwithstanding 31 any other law, the requirement that board meetings and 8 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 committee meetings be open to the members is inapplicable to 2 meetings between the board or a committee and the 3 association's attorney, with respect to meetings of the board 4 held for the purpose of discussing personnel matters. 5 (c) The bylaws shall provide for giving notice to 6 parcel owners and members of all board meetings and, if they 7 do not do so, shall be deemed to provide the following: 8 1. Notices of all board meetings must be posted in a 9 conspicuous place in the community at least 48 hours in 10 advance of a meeting, except in an emergency. In the 11 alternative, if notice is not posted in a conspicuous place in 12 the community, notice of each board meeting must be mailed or 13 delivered to each member at least 7 days before the meeting, 14 except in an emergency. Notwithstanding this general notice 15 requirement, for communities with more than 100 members, the 16 bylaws may provide for a reasonable alternative to posting or 17 mailing of notice for each board meeting, including 18 publication of notice, provision of a schedule of board 19 meetings, or the conspicuous posting and repeated broadcasting 20 of the notice on a closed-circuit cable television system 21 serving the homeowners' association. However, if broadcast 22 notice is used in lieu of a notice posted physically in the 23 community, the notice must be broadcast at least four times 24 every broadcast hour of each day that a posted notice is 25 otherwise required. When broadcast notice is provided, the 26 notice and agenda must be broadcast in a manner and for a 27 sufficient continuous length of time so as to allow an average 28 reader to observe the notice and read and comprehend the 29 entire content of the notice and the agenda. The bylaws or 30 amended bylaws may provide for giving notice by electronic 31 transmission in a manner authorized by law for meetings of the 9 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 board of directors, committee meetings requiring notice under 2 this section, and annual and special meetings of the members; 3 however, a member must consent in writing to receiving notice 4 by electronic transmission. 5 2. An assessment may not be levied at a board meeting 6 unless the notice of the meeting includes a statement that 7 assessments will be considered and the nature of the 8 assessments. Written notice of any meeting at which special 9 assessments will be considered or at which amendments to rules 10 regarding parcel use will be considered must be mailed, 11 delivered, or electronically transmitted to the members and 12 parcel owners and posted conspicuously on the property or 13 broadcast on closed-circuit cable television not less than 14 14 days before the meeting. 15 3. Directors may not vote by proxy or by secret ballot 16 at board meetings, except that secret ballots may be used in 17 the election of officers. This subsection also applies to the 18 meetings of any committee or other similar body, when a final 19 decision will be made regarding the expenditure of association 20 funds, and to any body vested with the power to approve or 21 disapprove architectural decisions with respect to a specific 22 parcel of residential property owned by a member of the 23 community. 24 (d) If 20 percent of the total voting interests 25 petition the board to address an item of business, the board 26 shall at its next regular board meeting or at a special 27 meeting of the board, but not later than 60 days after the 28 receipt of the petition, take the petitioned item up on an 29 agenda. The board shall give all members notice of the meeting 30 at which the petitioned item shall be addressed in accordance 31 with the 14-day notice requirement pursuant to subparagraph 10 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 (c)2. Each member shall have the right to speak for at least 3 2 minutes on each matter placed on the agenda by petition, 3 provided that the member signs the sign-up sheet, if one is 4 provided, or submits a written request to speak prior to the 5 meeting. Other than addressing the petitioned item at the 6 meeting, the board is not obligated to take any other action 7 requested by the petition. 8 (5) INSPECTION AND COPYING OF RECORDS.--The official 9 records shall be maintained within the state and must be open 10 to inspection and available for photocopying by members or 11 their authorized agents at reasonable times and places within 12 10 business days after receipt of a written request for 13 access. This subsection may be complied with by having a copy 14 of the official records available for inspection or copying in 15 the community. If the association has a photocopy machine 16 available where the records are maintained, it must provide 17 parcel owners with copies on request during the inspection if 18 the entire request is limited to no more than 25 pages. 19 (d) The association or its authorized agent is not 20 required to provide a prospective purchaser or lienholder with 21 information about the residential subdivision or the 22 association other than information or documents required by 23 this chapter to be made available or disclosed. The 24 association or its authorized agent may charge a reasonable 25 fee to the prospective purchaser or lienholder or the current 26 parcel owner or member for providing good faith responses to 27 requests for information by or on behalf of a prospective 28 purchaser or lienholder, other than that required by law, if 29 the fee does not exceed $150 plus the reasonable cost of 30 photocopying and any attorney's fees incurred by the 31 association in connection with the response. 11 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 (6) BUDGETS.-- 2 (a) The association shall prepare an annual budget 3 that sets out the annual operating expenses. The budget must 4 reflect the estimated revenues and expenses for that year and 5 the estimated surplus or deficit as of the end of the current 6 year. The budget must set out separately all fees or charges 7 paid for by the association for recreational amenities, 8 whether owned by the association, the developer, or another 9 person. The association shall provide each member with a copy 10 of the annual budget or a written notice that a copy of the 11 budget is available upon request at no charge to the member. 12 The copy must be provided to the member within the time limits 13 set forth in subsection (5). 14 (b) In addition to annual operating expenses, the 15 budget may include reserve accounts for capital expenditures 16 and deferred maintenance for which the association is 17 responsible to the extent that the governing documents do not 18 limit increases in assessments, including reserves. If the 19 budget of the association includes reserve accounts, such 20 reserves shall be determined, maintained, and waived in the 21 manner provided in this subsection. Once an association 22 provides for reserve accounts in the budget, the association 23 shall thereafter determine, maintain, and waive reserves in 24 compliance with this subsection. 25 (c) If the budget of the association does not provide 26 for reserve accounts governed by this subsection and the 27 association is responsible for the repair and maintenance of 28 capital improvements that may result in a special assessment 29 if reserves are not provided, each financial report for the 30 preceding fiscal year required by subsection (7) shall contain 31 the following statement in conspicuous type: THE BUDGET OF THE 12 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 ASSOCIATION DOES NOT PROVIDE FOR RESERVE ACCOUNTS FOR CAPITAL 2 EXPENDITURES AND DEFERRED MAINTENANCE THAT MAY RESULT IN 3 SPECIAL ASSESSMENTS. OWNERS MAY ELECT TO PROVIDE FOR RESERVE 4 ACCOUNTS PURSUANT TO THE PROVISIONS OF SECTION 720.303(6), 5 FLORIDA STATUTES, UPON THE APPROVAL OF NOT LESS THAN A 6 MAJORITY OF THE TOTAL VOTING INTERESTS OF THE ASSOCIATION. 7 (d) An association shall be deemed to have provided 8 for reserve accounts when reserve accounts have been initially 9 established by the developer or when the membership of the 10 association affirmatively elects to provide for reserves. If 11 reserve accounts are not initially provided for by the 12 developer, the membership of the association may elect to do 13 so upon the affirmative approval of not less than a majority 14 of the total voting interests of the association. Such 15 approval may be attained by vote of the members at a duly 16 called meeting of the membership or upon a written consent 17 executed by not less than a majority of the total voting 18 interests in the community. The approval action of the 19 membership shall state that reserve accounts shall be provided 20 for in the budget and designate the components for which the 21 reserve accounts are to be established. Upon approval by the 22 membership, the board of directors shall provide for the 23 required reserve accounts for inclusion in the budget in the 24 next fiscal year following the approval and in each year 25 thereafter. Once established as provided in this subsection, 26 the reserve accounts shall be funded or maintained or shall 27 have their funding waived in the manner provided in paragraph 28 (f). 29 (e) The amount to be reserved in any account 30 established shall be computed by means of a formula that is 31 based upon estimated remaining useful life and estimated 13 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 replacement cost or deferred maintenance expense of each 2 reserve item. The association may adjust replacement reserve 3 assessments annually to take into account any changes in 4 estimates of cost or useful life of a reserve item. 5 (f) Once a reserve account or reserve accounts are 6 established, the membership of the association, upon a 7 majority vote at a meeting at which a quorum is present, may 8 provide for no reserves or less reserves than required by this 9 section. If a meeting of the unit owners has been called to 10 determine whether to waive or reduce the funding of reserves 11 and no such result is achieved or a quorum is not present, the 12 reserves as included in the budget shall go into effect. After 13 the turnover, the developer may vote its voting interest to 14 waive or reduce the funding of reserves. Any vote taken 15 pursuant to this subsection to waive or reduce reserves shall 16 be applicable only to one budget year. 17 (g) Funding formulas for reserves authorized by this 18 section shall be based on either a separate analysis of each 19 of the required assets or a pooled analysis of two or more of 20 the required assets. 21 1. If the association maintains separate reserve 22 accounts for each of the required assets, the amount of the 23 contribution to each reserve account shall be the sum of the 24 following two calculations: 25 a. The total amount necessary, if any, to bring a 26 negative component balance to zero. 27 b. The total estimated deferred maintenance expense or 28 estimated replacement cost of the reserve component less the 29 estimated balance of the reserve component as of the beginning 30 of the period for which the budget will be in effect. The 31 remainder, if greater than zero, shall be divided by the 14 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 estimated remaining useful life of the component. 2 3 The formula may be adjusted each year for changes in estimates 4 and deferred maintenance performed during the year and may 5 include factors such as inflation and earnings on invested 6 funds. 7 2. If the association maintains a pooled account of 8 two or more of the required reserve assets, the amount of the 9 contribution to the pooled reserve account as disclosed on the 10 proposed budget shall not be less than that required to ensure 11 that the balance on hand at the beginning of the period for 12 which the budget will go into effect plus the projected annual 13 cash inflows over the remaining estimated useful life of all 14 of the assets that make up the reserve pool are equal to or 15 greater than the projected annual cash outflows over the 16 remaining estimated useful lives of all of the assets that 17 make up the reserve pool, based on the current reserve 18 analysis. The projected annual cash inflows may include 19 estimated earnings from investment of principal. The reserve 20 funding formula shall not include any type of balloon 21 payments. 22 (h) Reserve funds and any interest accruing thereon 23 shall remain in the reserve account or accounts and shall be 24 used only for authorized reserve expenditures unless their use 25 for other purposes is approved in advance by a majority vote 26 at a meeting at which a quorum is present. Prior to turnover 27 of control of an association by a developer to parcel owners, 28 the developer-controlled association shall not vote to use 29 reserves for purposes other than those for which they were 30 intended without the approval of a majority of all 31 nondeveloper voting interests voting in person or by limited 15 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 proxy at a duly called meeting of the association. 2 (7) FINANCIAL REPORTING.--Within 90 days after the end 3 of the fiscal year, or annually on the date provided in the 4 bylaws, the association shall prepare and complete, or 5 contract with a third party for the preparation and completion 6 of, a financial report for the preceding fiscal year. Within 7 21 days after the final financial report is completed by the 8 association or received from the third party, but not later 9 than 120 days after the end of the fiscal year or other date 10 as provided in the bylaws, the association shall prepare an 11 annual financial report within 60 days after the close of the 12 fiscal year. The association shall, within the time limits set 13 forth in subsection (5), provide each member with a copy of 14 the annual financial report or a written notice that a copy of 15 the financial report is available upon request at no charge to 16 the member. Financial reports shall be prepared as follows: 17 (a) An association that meets the criteria of this 18 paragraph shall prepare or cause to be prepared a complete set 19 of financial statements in accordance with generally accepted 20 accounting principles as adopted by the Board of Accountancy. 21 The financial statements shall be based upon the association's 22 total annual revenues, as follows: 23 1. An association with total annual revenues of 24 $100,000 or more, but less than $200,000, shall prepare 25 compiled financial statements. 26 2. An association with total annual revenues of at 27 least $200,000, but less than $400,000, shall prepare reviewed 28 financial statements. 29 3. An association with total annual revenues of 30 $400,000 or more shall prepare audited financial statements. 31 (b)1. An association with total annual revenues of 16 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 less than $100,000 shall prepare a report of cash receipts and 2 expenditures. 3 2. An association in a community of fewer than 50 4 parcels, regardless of the association's annual revenues, may 5 prepare a report of cash receipts and expenditures in lieu of 6 financial statements required by paragraph (a) unless the 7 governing documents provide otherwise. 8 3. A report of cash receipts and disbursement must 9 disclose the amount of receipts by accounts and receipt 10 classifications and the amount of expenses by accounts and 11 expense classifications, including, but not limited to, the 12 following, as applicable: costs for security, professional, 13 and management fees and expenses; taxes; costs for recreation 14 facilities; expenses for refuse collection and utility 15 services; expenses for lawn care; costs for building 16 maintenance and repair; insurance costs; administration and 17 salary expenses; and reserves if maintained by the 18 association. 19 (c) If 20 percent of the parcel owners petition the 20 board for a level of financial reporting higher than that 21 required by this section, the association shall duly notice 22 and hold a meeting of members within 30 days of receipt of the 23 petition for the purpose of voting on raising the level of 24 reporting for that fiscal year. Upon approval of a majority of 25 the total voting interests of the parcel owners, the 26 association shall prepare or cause to be prepared, shall amend 27 the budget or adopt a special assessment to pay for the 28 financial report regardless of any provision to the contrary 29 in the governing documents, and shall provide within 90 days 30 of the meeting or the end of the fiscal year, whichever occurs 31 later: 17 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 1. Compiled, reviewed, or audited financial 2 statements, if the association is otherwise required to 3 prepare a report of cash receipts and expenditures; 4 2. Reviewed or audited financial statements, if the 5 association is otherwise required to prepare compiled 6 financial statements; or 7 3. Audited financial statements if the association is 8 otherwise required to prepare reviewed financial statements. 9 (d) If approved by a majority of the voting interests 10 present at a properly called meeting of the association, an 11 association may prepare or cause to be prepared: 12 1. A report of cash receipts and expenditures in lieu 13 of a compiled, reviewed, or audited financial statement; 14 2. A report of cash receipts and expenditures or a 15 compiled financial statement in lieu of a reviewed or audited 16 financial statement; or 17 3. A report of cash receipts and expenditures, a 18 compiled financial statement, or a reviewed financial 19 statement in lieu of an audited financial statement. 20 Section 10. Subsection (2) of section 720.303, Florida 21 Statutes, as amended by section 2 of chapter 2004-345 and 22 section 15 of chapter 2004-353, Laws of Florida, is repealed. 23 Section 11. Section 720.3035, Florida Statutes, is 24 created to read: 25 720.3035 Architectural control covenants; parcel owner 26 improvements; rights and privileges.-- 27 (1) The authority of an association or any 28 architectural, construction improvement, or other such similar 29 committee of an association to review and approve plans and 30 specifications for the location, size, type, or appearance of 31 any structure or other improvement on a parcel, or to enforce 18 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 standards for the external appearance of any structure or 2 improvement located on a parcel, shall be permitted only to 3 the extent that the authority is specifically stated or 4 reasonably inferred as to such location, size, type, or 5 appearance in the declaration of covenants or other published 6 guidelines and standards authorized by the declaration of 7 covenants. 8 (2) If the declaration of covenants or other published 9 guidelines and standards authorized by the declaration of 10 covenants provides options for the use of material, the size 11 of the structure or improvement, the design of the structure 12 or improvement, or the location of the structure or 13 improvement on the parcel, neither the association nor any 14 architectural, construction improvement, or other such similar 15 committee of the association shall restrict the right of a 16 parcel owner to select from the options provided in the 17 declaration of covenants or other published guidelines and 18 standards authorized by the declaration of covenants. 19 (3) Unless otherwise specifically stated in the 20 declaration of covenants or other published guidelines and 21 standards authorized by the declaration of covenants, each 22 parcel shall be deemed to have only one front for purposes of 23 determining the required front setback even if the parcel is 24 bounded by a roadway or other easement on more than one side. 25 When the declaration of covenants or other published 26 guidelines and standards authorized by the declaration of 27 covenants do not provide for specific setback limitations, the 28 applicable county or municipal setback limitations shall 29 apply, and neither the association nor any architectural, 30 construction improvement, or other such similar committee of 31 the association shall enforce or attempt to enforce any 19 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 setback limitation that is inconsistent with the applicable 2 county or municipal standard or standards. 3 (4) Each parcel owner shall be entitled to the rights 4 and privileges set forth in the declaration of covenants or 5 other published guidelines and standards authorized by the 6 declaration of covenants concerning the architectural use of 7 the parcel, and the construction of permitted structures and 8 improvements on the parcel and such rights and privileges 9 shall not be unreasonably infringed upon or impaired by the 10 association or any architectural, construction improvement, or 11 other such similar committee of the association. If the 12 association or any architectural, construction improvement, or 13 other such similar committee of the association should 14 unreasonably, knowingly, and willfully infringe upon or impair 15 the rights and privileges set forth in the declaration of 16 covenants or other published guidelines and standards 17 authorized by the declaration of covenants, the adversely 18 affected parcel owner shall be entitled to recover damages 19 caused by such infringement or impairment, including any costs 20 and reasonable attorney's fees incurred in preserving or 21 restoring the rights and privileges of the parcel owner set 22 forth in the declaration of covenants or other published 23 guidelines and standards authorized by the declaration of 24 covenants. 25 (5) Neither the association nor any architectural, 26 construction improvement, or other such similar committee of 27 the association shall enforce any policy or restriction that 28 is inconsistent with the rights and privileges of a parcel 29 owner set forth in the declaration of covenants or other 30 published guidelines and standards authorized by the 31 declaration of covenants, whether uniformly applied or not. 20 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 Neither the association nor any architectural, construction 2 improvement, or other such similar committee of the 3 association may rely upon a policy or restriction that is 4 inconsistent with the declaration of covenants or other 5 published guidelines and standards authorized by the 6 declaration of covenants, whether uniformly applied or not, in 7 defense of any action taken in the name of or on behalf of the 8 association against a parcel owner. 9 Section 12. Subsection (1) of section 720.305, Florida 10 Statutes, is amended to read: 11 720.305 Obligations of members; remedies at law or in 12 equity; levy of fines and suspension of use rights; failure to 13 fill sufficient number of vacancies on board of directors to 14 constitute a quorum; appointment of receiver upon petition of 15 any member.-- 16 (1) Each member and the member's tenants, guests, and 17 invitees, and each association, are governed by, and must 18 comply with, this chapter, the governing documents of the 19 community, and the rules of the association. Actions at law or 20 in equity, or both, to redress alleged failure or refusal to 21 comply with these provisions may be brought by the association 22 or by any member against: 23 (a) The association; 24 (b) A member; 25 (c) Any director or officer of an association who 26 willfully and knowingly fails to comply with these provisions; 27 and 28 (d) Any tenants, guests, or invitees occupying a 29 parcel or using the common areas. 30 31 The prevailing party in any such litigation is entitled to 21 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 recover reasonable attorney's fees and costs. A member 2 prevailing in an action between the association and the member 3 under this section, in addition to recovering his or her 4 reasonable attorney's fees, may recover additional amounts as 5 determined by the court to be necessary to reimburse the 6 member for his or her share of assessments levied by the 7 association to fund its expenses of the litigation. This 8 relief does not exclude other remedies provided by law. This 9 section does not deprive any person of any other available 10 right or remedy. 11 Section 13. Paragraph (c) of subsection (1) of section 12 720.306, Florida Statutes, is amended to read: 13 720.306 Meetings of members; voting and election 14 procedures; amendments.-- 15 (1) QUORUM; AMENDMENTS.-- 16 (c) Unless otherwise provided in the governing 17 documents as originally recorded or permitted by this chapter 18 or chapter 617, an amendment may not materially and adversely 19 alter the proportionate voting interest appurtenant to a 20 parcel or increase the proportion or percentage by which a 21 parcel shares in the common expenses of the association unless 22 the record parcel owner and all record owners of liens on the 23 parcels join in the execution of the amendment. For purposes 24 of this section, a change in quorum requirements is not an 25 alteration of voting interests. The merger or consolidation of 26 one or more associations under a plan of merger or 27 consolidation under chapter 607 or chapter 617 shall not be 28 considered a material or adverse alteration of the 29 proportionate voting interest appurtenant to a parcel. 30 Section 14. Paragraph (t) is added to subsection (3) 31 of section 720.307, Florida Statutes, to read: 22 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 720.307 Transition of association control in a 2 community.--With respect to homeowners' associations: 3 (3) At the time the members are entitled to elect at 4 least a majority of the board of directors of the homeowners' 5 association, the developer shall, at the developer's expense, 6 within no more than 90 days deliver the following documents to 7 the board: 8 (t) The financial records, including financial 9 statements of the association, and source documents from the 10 incorporation of the association through the date of turnover. 11 The records shall be audited by an independent certified 12 public accountant for the period from the incorporation of the 13 association or from the period covered by the last audit, if 14 an audit has been performed for each fiscal year since 15 incorporation. All financial statements shall be prepared in 16 accordance with generally accepted accounting principles and 17 shall be audited in accordance with generally accepted 18 auditing standards, as prescribed by the Board of Accountancy, 19 pursuant to chapter 473. The certified public accountant 20 performing the audit shall examine to the extent necessary 21 supporting documents and records, including the cash 22 disbursements and related paid invoices to determine if 23 expenditures were for association purposes and the billings, 24 cash receipts, and related records of the association to 25 determine that the developer was charged and paid the proper 26 amounts of assessments. This paragraph applies to associations 27 with a date of incorporation after December 31, 2007. 28 Section 15. Section 720.308, Florida Statutes, is 29 amended to read: 30 720.308 Assessments and charges.-- 31 (1) ASSESSMENTS.--For any community created after 23 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 October 1, 1995, the governing documents must describe the 2 manner in which expenses are shared and specify the member's 3 proportional share thereof. Assessments levied pursuant to the 4 annual budget or special assessment must be in the member's 5 proportional share of expenses as described in the governing 6 document, which share may be different among classes of 7 parcels based upon the state of development thereof, levels of 8 services received by the applicable members, or other relevant 9 factors. While the developer is in control of the homeowners' 10 association, it may be excused from payment of its share of 11 the operating expenses and assessments related to its parcels 12 for any period of time for which the developer has, in the 13 declaration, obligated itself to pay any operating expenses 14 incurred that exceed the assessments receivable from other 15 members and other income of the association. This section does 16 not apply to an association, no matter when created, if the 17 association is created in a community that is included in an 18 effective development-of-regional-impact development order as 19 of the effective date of this act, together with any approved 20 modifications thereto. 21 (2) GUARANTEES OF COMMON EXPENSES.-- 22 (a) Establishment of a guarantee.--If a guarantee of 23 the assessments of parcel owners is not included in the 24 purchase contracts or declaration, any agreement establishing 25 a guarantee shall only be effective upon the approval of a 26 majority of the voting interests of the members other than the 27 developer. Approval shall be expressed at a meeting of the 28 members voting in person or by limited proxy or by agreement 29 in writing without a meeting if provided in the bylaws. Such 30 guarantee must meet the requirements of this section. 31 (b) Guarantee period.--The period of time for the 24 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 guarantee shall be indicated by a specific beginning and 2 ending date or event. 3 1. The ending date or event shall be the same for all 4 of the members of an association, including members in 5 different phases of the development. 6 2. The guarantee may provide for different intervals 7 of time during a guarantee period with different dollar 8 amounts for each such interval. 9 3. The guarantee may provide that after the initial 10 stated period, the developer has an option to extend the 11 guarantee for one or more additional stated periods. The 12 extension of a guarantee is limited to extending the ending 13 date or event; therefore, the developer does not have the 14 option of changing the level of assessments guaranteed. 15 (3) MAXIMUM LEVEL OF ASSESSMENTS.--The stated dollar 16 amount of the guarantee shall be an exact dollar amount for 17 each parcel identified in the declaration. Regardless of the 18 stated dollar amount of the guarantee, assessments charged to 19 a member shall not exceed the maximum obligation of the member 20 based on the total amount of the adopted budget and the 21 member's proportionate share of the expenses as described in 22 the governing documents. 23 (4) CASH FUNDING REQUIREMENTS DURING GUARANTEE.--The 24 cash payments required from the guarantor during the guarantee 25 period shall be determined as follows: 26 (a) If at any time during the guarantee period the 27 funds collected from member assessments at the guaranteed 28 level and other revenues collected by the association are not 29 sufficient to provide payment, on a timely basis, of all 30 assessments, including the full funding of the reserves unless 31 properly waived, the guarantor shall advance sufficient cash 25 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 to the association at the time such payments are due. 2 (b) Expenses incurred in the production of 3 nonassessment revenues, not in excess of the nonassessment 4 revenues, shall not be included in the assessments. If the 5 expenses attributable to nonassessment revenues exceed 6 nonassessment revenues, only the excess expenses must be 7 funded by the guarantor. Interest earned on the investment of 8 association funds may be used to pay the income tax expense 9 incurred as a result of the investment; such expense shall not 10 be charged to the guarantor; and the net investment income 11 shall be retained by the association. Each such 12 nonassessment-revenue-generating activity shall be considered 13 separately. Any portion of the parcel assessment which is 14 budgeted for designated capital contributions of the 15 association shall not be used to pay operating expenses. 16 (5) CALCULATION OF GUARANTOR'S FINAL OBLIGATION.--The 17 guarantor's total financial obligation to the association at 18 the end of the guarantee period shall be determined on the 19 accrual basis using the following formula: the guarantor shall 20 pay any deficits that exceed the guaranteed amount, less the 21 total regular periodic assessments earned by the association 22 from the members other than the guarantor during the guarantee 23 period regardless of whether the actual level charged was less 24 than the maximum guaranteed amount. 25 (6) EXPENSES.--Expenses incurred in the production of 26 nonassessment revenues, not in excess of the nonassessment 27 revenues, shall not be included in the operating expenses. If 28 the expenses attributable to nonassessment revenues exceed 29 nonassessment revenues, only the excess expenses must be 30 funded by the guarantor. Interest earned on the investment of 31 association funds may be used to pay the income tax expense 26 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 incurred as a result of the investment; such expense shall not 2 be charged to the guarantor; and the net investment income 3 shall be retained by the association. Each such 4 nonassessment-revenue-generating activity shall be considered 5 separately. Any portion of the parcel assessment which is 6 budgeted for designated capital contributions of the 7 association shall not be used to pay operating expenses. 8 Section 16. Section 720.311, Florida Statutes, is 9 amended to read: 10 720.311 Dispute resolution.-- 11 (1) The Legislature finds that alternative dispute 12 resolution has made progress in reducing court dockets and 13 trials and in offering a more efficient, cost-effective option 14 to litigation. The filing of any petition for mediation or 15 arbitration or the serving of a demand for presuit mediation 16 as provided for in this section shall toll the applicable 17 statute of limitations. Any recall dispute filed with the 18 department pursuant to s. 720.303(10) shall be conducted by 19 the department in accordance with the provisions of ss. 20 718.112(2)(j) and 718.1255 and the rules adopted by the 21 division. In addition, the department shall conduct mandatory 22 binding arbitration of election disputes between a member and 23 an association pursuant to s. 718.1255 and rules adopted by 24 the division. Neither election disputes nor recall disputes 25 are eligible for presuit mediation; these disputes shall be 26 arbitrated by the department. At the conclusion of the 27 proceeding, the department shall charge the parties a fee in 28 an amount adequate to cover all costs and expenses incurred by 29 the department in conducting the proceeding. Initially, the 30 petitioner shall remit a filing fee of at least $200 to the 31 department. The fees paid to the department shall become a 27 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 recoverable cost in the arbitration proceeding, and the 2 prevailing party in an arbitration proceeding shall recover 3 its reasonable costs and attorney's fees in an amount found 4 reasonable by the arbitrator. The department shall adopt rules 5 to effectuate the purposes of this section. 6 (2)(a) Disputes between an association and a parcel 7 owner regarding use of or changes to the parcel or the common 8 areas and other covenant enforcement disputes, disputes 9 regarding amendments to the association documents, disputes 10 regarding meetings of the board and committees appointed by 11 the board, membership meetings not including election 12 meetings, and access to the official records of the 13 association shall be the subject of a demand filed with the 14 department for presuit mandatory mediation served by an 15 aggrieved party before the dispute is filed in court. Presuit 16 mediation proceedings must be conducted in accordance with the 17 applicable Florida Rules of Civil Procedure, and these 18 proceedings are privileged and confidential to the same extent 19 as court-ordered mediation. Disputes subject to presuit 20 mediation under this section shall not include the collection 21 of any assessment, fine, or other financial obligation, 22 including attorney's fees and costs, claimed to be due or any 23 action to enforce a prior mediation settlement agreement 24 between the parties. Also, in any dispute subject to presuit 25 mediation under this section where emergency relief is 26 required, a motion for temporary injunctive relief may be 27 filed with the court without first complying with the presuit 28 mediation requirements of this section. After any issues 29 regarding emergency or temporary relief are resolved, the 30 court may either refer the parties to a mediation program 31 administered by the courts or require mediation under this 28 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 section. An arbitrator or judge may not consider any 2 information or evidence arising from the presuit mediation 3 proceeding except in a proceeding to impose sanctions for 4 failure to attend a presuit mediation session or to enforce a 5 mediated settlement agreement. Persons who are not parties to 6 the dispute may not attend the presuit mediation conference 7 without the consent of all parties, except for counsel for the 8 parties and a corporate representative designated by the 9 association. When mediation is attended by a quorum of the 10 board, such mediation is not a board meeting for purposes of 11 notice and participation set forth in s. 720.303. An aggrieved 12 party shall serve on the responding party a written demand to 13 participate in presuit mediation in substantially the 14 following form: 15 STATUTORY OFFER TO PARTICIPATE IN PRESUIT MEDIATION 16 17 The alleged aggrieved party,__________________, hereby demands 18 that _________________, as the responding party, engage in 19 mandatory presuit mediation in connection with the following 20 disputes, which by statute are of a type that are subject to 21 presuit mediation: 22 23 (List specific nature of the dispute or disputes to be 24 mediated and the authority supporting a finding of a violation 25 as to each dispute.) 26 27 Pursuant to section 720.311, Florida Statutes, this demand to 28 resolve the dispute through presuit mediation is required 29 before a lawsuit can be filed concerning the dispute. Pursuant 30 to the statute, the parties are required to engage in presuit 31 mediation with a neutral third-party mediator in order to 29 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 attempt to resolve this dispute without court action, and the 2 aggrieved party demands that you likewise agree to this 3 process. If you fail to participate in the mediation process, 4 suit may be brought against you without further warning. 5 6 The process of mediation involves a supervised negotiation 7 process in which a trained, neutral third-party mediator meets 8 with both parties and assists them in exploring possible 9 opportunities for resolving part or all of the dispute. By 10 agreeing to participate in presuit mediation, you are not 11 bound in any way to change your position. Furthermore, the 12 mediator has no authority to make any decisions in this matter 13 or to determine who is right or wrong and merely acts as a 14 facilitator to ensure that each party understands the position 15 of the other party and that all options for reasonable 16 settlement are fully explored. 17 18 If an agreement is reached, it shall be reduced to writing and 19 becomes a binding and enforceable commitment of the parties. A 20 resolution of one or more disputes in this fashion avoids the 21 need to litigate these issues in court. The failure to reach 22 an agreement, or the failure of a party to participate in the 23 process, results in the mediator declaring an impasse in the 24 mediation, after which the aggrieved party may proceed to 25 court on all outstanding, unsettled disputes. If you have 26 failed or refused to participate in the entire mediation 27 process, you will not be entitled to recover attorney's fees, 28 even if you prevail. 29 30 The aggrieved party has selected and hereby lists five 31 certified mediators who we believe to be neutral and qualified 30 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 to mediate the dispute. You have the right to select any one 2 of these mediators. The fact that one party may be familiar 3 with one or more of the listed mediators does not mean that 4 the mediator cannot act as a neutral and impartial 5 facilitator. Any mediator who cannot act in this capacity is 6 required ethically to decline to accept engagement. The 7 mediators that we suggest, and their current hourly rates, are 8 as follows: 9 10 (List the names, addresses, telephone numbers, and hourly 11 rates of the mediators. Other pertinent information about the 12 background of the mediators may be included as an attachment.) 13 14 You may contact the offices of these mediators to confirm that 15 the listed mediators will be neutral and will not show any 16 favoritism toward either party. The names of certified 17 mediators may be found through the office of the clerk of the 18 circuit court for this circuit. 19 20 Unless otherwise agreed by the parties, section 720.311(2)(b), 21 Florida Statutes, requires that the parties share the costs or 22 presuit mediation equally, including the fee charged by the 23 mediator. An average mediation may require three to four hours 24 of the mediator's time, including some preparation time, and 25 the parties would need to share equally the mediator's fees as 26 well as their own attorney's fees if they choose to employ an 27 attorney in connection with the mediation. However, use of an 28 attorney is not required and is at the option of each party. 29 The mediators may require the advance payment of some or all 30 of the anticipated fees. The aggrieved party hereby agrees to 31 pay or prepay one-half of the mediator's estimated fees and to 31 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 forward this amount or such other reasonable advance deposits 2 as the mediator requires for this purpose. Any funds deposited 3 will be returned to you if these are in excess of your share 4 of the fees incurred. 5 6 To begin your participation in presuit mediation to try to 7 resolve the dispute and avoid further legal action, please 8 sign below and clearly indicate which mediator is acceptable 9 to you. We will then ask the mediator to schedule a mutually 10 convenient time and place for the mediation conference to be 11 held. The mediation conference must be held within ninety (90) 12 days of this date, unless extended by mutual written 13 agreement. In the event that you fail to respond within 20 14 days from the date of this letter, or if you fail to agree to 15 at least one of the mediators that we have suggested or to pay 16 or prepay to the mediator one-half of the costs involved, the 17 aggrieved party will be authorized to proceed with the filing 18 of a lawsuit against you without further notice and may seek 19 an award of attorney's fees or costs incurred in attempting to 20 obtain mediation. 21 22 Therefore, please give this matter your immediate attention. 23 By law, your response must be mailed by certified mail, return 24 receipt requested, and by first-class mail to the address 25 shown on this demand. 26 27 _____________________ 28 _____________________ 29 30 RESPONDING PARTY: YOUR SIGNATURE INDICATES YOUR AGREEMENT TO 31 THAT CHOICE. 32 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 2 AGREEMENT TO MEDIATE 3 4 The undersigned hereby agrees to participate in presuit 5 mediation and agrees to attend a mediation conducted by the 6 following mediator or mediators who are listed above as 7 someone who would be acceptable to mediate this dispute: 8 9 (List acceptable mediator or mediators.) 10 11 I/we further agree to pay or prepay one-half of the mediator's 12 fees and to forward such advance deposits as the mediator may 13 require for this purpose. 14 15 _______________________ 16 Signature of responding party #1 17 18 _______________________ 19 Telephone contact information 20 21 _______________________ 22 Signature and telephone contact information of 23 responding party #2 (if applicable)(if property is owned by 24 more than one person, all owners must sign) 25 26 (b) Service of the statutory demand to participate in 27 presuit mediation shall be effected by sending a letter in 28 substantial conformity with the above form by certified mail, 29 return receipt requested, with an additional copy being sent 30 by regular first-class mail, to the address of the responding 31 party as it last appears on the books and records of the 33 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 association. The responding party has 20 days from the date of 2 the mailing of the statutory demand to serve a response to the 3 aggrieved party in writing. The response shall be served by 4 certified mail, return receipt requested, with an additional 5 copy being sent by regular first-class mail, to the address 6 shown on the statutory demand. Notwithstanding the foregoing, 7 once the parties have agreed on a mediator, the mediator may 8 reschedule the mediation for a date and time mutually 9 convenient to the parties. The department shall conduct the 10 proceedings through the use of department mediators or refer 11 the disputes to private mediators who have been duly certified 12 by the department as provided in paragraph (c). The parties 13 shall share the costs of presuit mediation equally, including 14 the fee charged by the mediator, if any, unless the parties 15 agree otherwise, and the mediator may require advance payment 16 of its reasonable fees and costs. The failure of any party to 17 respond to a demand or response, to agree upon a mediator, to 18 make payment of fees and costs within the time established by 19 the mediator, or to appear for a scheduled mediation session 20 without the approval of the mediator, shall constitute the 21 failure or refusal to participate in the mediation process and 22 shall operate as an impasse in the presuit mediation by such 23 party, entitling the other party to proceed in court and to 24 seek an award of the costs and fees associated with the 25 mediation. Additionally, notwithstanding the provisions of any 26 other law or document, persons who fail or refuse to 27 participate in the entire mediation process may not recover 28 attorney's fees and costs in subsequent litigation relating to 29 the dispute. If any presuit mediation session cannot be 30 scheduled and conducted within 90 days after the offer to 31 participate in mediation was filed, an impasse shall be deemed 34 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 to have occurred unless both parties agree to extend this 2 deadline. If a department mediator is used, the department may 3 charge such fee as is necessary to pay expenses of the 4 mediation, including, but not limited to, the salary and 5 benefits of the mediator and any travel expenses incurred. The 6 petitioner shall initially file with the department upon 7 filing the disputes, a filing fee of $200, which shall be used 8 to defray the costs of the mediation. At the conclusion of the 9 mediation, the department shall charge to the parties, to be 10 shared equally unless otherwise agreed by the parties, such 11 further fees as are necessary to fully reimburse the 12 department for all expenses incurred in the mediation. 13 (c)(b) If presuit mediation as described in paragraph 14 (a) is not successful in resolving all issues between the 15 parties, the parties may file the unresolved dispute in a 16 court of competent jurisdiction or elect to enter into binding 17 or nonbinding arbitration pursuant to the procedures set forth 18 in s. 718.1255 and rules adopted by the division, with the 19 arbitration proceeding to be conducted by a department 20 arbitrator or by a private arbitrator certified by the 21 department. If all parties do not agree to arbitration 22 proceedings following an unsuccessful presuit mediation, any 23 party may file the dispute in court. A final order resulting 24 from nonbinding arbitration is final and enforceable in the 25 courts if a complaint for trial de novo is not filed in a 26 court of competent jurisdiction within 30 days after entry of 27 the order. As to any issue or dispute that is not resolved at 28 presuit mediation, and as to any issue that is settled at 29 presuit mediation but is thereafter subject to an action 30 seeking enforcement of the mediation settlement, the 31 prevailing party in any subsequent arbitration or litigation 35 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 proceeding shall be entitled to seek recovery of all costs and 2 attorney's fees incurred in the presuit mediation process. 3 (d)(c) The department shall develop a certification 4 and training program for private mediators and private 5 arbitrators which shall emphasize experience and expertise in 6 the area of the operation of community associations. A 7 mediator or arbitrator shall be certified authorized to 8 conduct mediation or arbitration under this section by the 9 department only if he or she has been certified as a circuit 10 court civil mediator or arbitrator, respectively, pursuant to 11 the requirements established attended at least 20 hours of 12 training in mediation or arbitration, as appropriate, and only 13 if the applicant has mediated or arbitrated at least 10 14 disputes involving community associations within 5 years prior 15 to the date of the application, or has mediated or arbitrated 16 10 disputes in any area within 5 years prior to the date of 17 application and has completed 20 hours of training in 18 community association disputes. In order to be certified by 19 the department, any mediator must also be certified by the 20 Florida Supreme Court. Settlement agreements resulting from 21 mediation shall not have precedential value in proceedings 22 involving parties other than those participating in the 23 mediation to support either a claim or defense in other 24 disputes. The department may conduct the training and 25 certification program within the department or may contract 26 with an outside vendor to perform the training or 27 certification. The expenses of operating the training and 28 certification and training program shall be paid by the moneys 29 and filing fees generated by the arbitration of recall and 30 election disputes and by the mediation of those disputes 31 referred to in this subsection and by the training fees. 36 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 (e)(d) The presuit mediation procedures provided by 2 this subsection may be used by a Florida corporation 3 responsible for the operation of a community in which the 4 voting members are parcel owners or their representatives, in 5 which membership in the corporation is not a mandatory 6 condition of parcel ownership, or which is not authorized to 7 impose an assessment that may become a lien on the parcel. 8 (3) The department shall develop an education program 9 to assist homeowners, associations, board members, and 10 managers in understanding and increasing awareness of the 11 operation of homeowners' associations pursuant to this chapter 12 and in understanding the use of alternative dispute resolution 13 techniques in resolving disputes between parcel owners and 14 associations or between owners. Such education program may 15 include the development of pamphlets and other written 16 instructional guides, the holding of classes and meetings by 17 department employees or outside vendors, as the department 18 determines, and the creation and maintenance of a website 19 containing instructional materials. The expenses of operating 20 the education program shall be initially paid by the moneys 21 and filing fees generated by the arbitration of recall and 22 election disputes and by the mediation of those disputes 23 referred to in this subsection. 24 Section 17. Except as otherwise expressly provided in 25 this act, this act shall take effect July 1, 2007. 26 27 28 ================ T I T L E A M E N D M E N T =============== 29 And the title is amended as follows: 30 Delete everything before the enacting clause 31 37 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 and insert: 2 A bill to be entitled 3 An act relating to community associations; 4 creating s. 712.11, F.S.; providing for the 5 revival of certain covenants that have lapsed; 6 amending s. 718.106, F.S.; prohibiting local 7 governments from limiting the access of certain 8 persons to beaches adjacent to or adjoining 9 condominium property; amending s. 718.110, 10 F.S.; revising provisions relating to the 11 amendment of declarations; providing 12 legislative findings and a finding of 13 compelling state interest; providing criteria 14 for consent to an amendment; requiring notice 15 regarding proposed amendments to mortgagees; 16 providing criteria for notification; providing 17 for voiding certain amendments; amending s. 18 718.114, F.S.; providing that certain 19 leaseholds, memberships, or other possessory or 20 use interests shall be considered a material 21 alteration or substantial addition to certain 22 real property; amending s. 718.404, F.S.; 23 providing retroactive application of provisions 24 relating to mixed-use condominiums; amending s. 25 719.103, F.S.; providing a definition; amending 26 s. 719.507, F.S.; prohibiting laws, ordinances, 27 or regulations that apply only to improvements 28 that are or may be subjected to an equity club 29 form of ownership; amending s. 720.302, F.S.; 30 revising governing provisions relating to 31 corporations that operate residential 38 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 homeowners' associations; amending s. 720.303, 2 F.S.; revising application to include certain 3 meetings; requiring the association to provide 4 certain information to prospective purchasers 5 or lienholders; authorizing the association to 6 charge a reasonable fee for providing certain 7 information; requiring the budget to provide 8 for annual operating expenses; authorizing the 9 budget to include reserve accounts for capital 10 expenditures and deferred maintenance; 11 providing a formula for calculating the amount 12 to be reserved; authorizing the association to 13 adjust replacement reserve assessments 14 annually; authorizing the developer to vote to 15 waive the reserves or reduce the funding of 16 reserves for a certain period; revising 17 provisions relating to financial reporting; 18 revising time periods in which the association 19 must complete its reporting; repealing s. 20 720.303(2), F.S., as amended, relating to board 21 meetings, to remove conflicting versions of 22 that subsection; creating s. 720.3035, F.S.; 23 providing for architectural control covenants 24 and parcel owner improvements; authorizing the 25 review and approval of plans and 26 specifications; providing limitations; 27 providing rights and privileges for parcel 28 owners as set forth in the declaration of 29 covenants; amending s. 720.305, F.S.; providing 30 that, where a member is entitled to collect 31 attorney's fees against the association, the 39 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 member may also recover additional amounts as 2 determined by the court; amending s. 720.306, 3 F.S.; providing that certain mergers or 4 consolidations of an association shall not be 5 considered a material or adverse alteration of 6 the proportionate voting interest appurtenant 7 to a parcel; amending s. 720.307, F.S.; 8 requiring developers to deliver financial 9 records to the board in any transition of 10 association control to members; requiring 11 certain information to be included in the 12 records and for the records to be prepared in a 13 specified manner; amending s. 720.308, F.S.; 14 providing circumstances under which a guarantee 15 of common expenses shall be effective; 16 providing for approval of the guarantee by 17 association members; providing for a guarantee 18 period and extension thereof; requiring the 19 stated dollar amount of the guarantee to be an 20 exact dollar amount for each parcel identified 21 in the declaration; providing payments required 22 from the guarantor to be determined in a 23 certain manner; providing a formula to 24 determine the guarantor's total financial 25 obligation to the association; providing that 26 certain expenses incurred in the production of 27 certain revenues shall not be included in the 28 operating expenses; amending s. 720.311, F.S.; 29 revising provisions relating to dispute 30 resolution; providing that the filing of any 31 petition for arbitration or the serving of an 40 2:12 PM 03/05/07 s0902.ri13.001
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 902 Barcode 324514 1 offer for presuit mediation shall toll the 2 applicable statute of limitations; providing 3 that certain disputes between an association 4 and a parcel owner shall be subject to presuit 5 mediation; revising provisions to conform; 6 providing that temporary injunctive relief may 7 be sought in certain disputes subject to 8 presuit mediation; authorizing the court to 9 refer the parties to mediation under certain 10 circumstances; requiring the aggrieved party to 11 serve on the responding party a written offer 12 to participate in presuit mediation; providing 13 a form for such offer; providing that service 14 of the offer is effected by the sending of such 15 an offer in a certain manner; providing that 16 the prevailing party in any subsequent 17 arbitration or litigation proceedings is 18 entitled to seek recovery of all costs and 19 attorney's fees incurred in the presuit 20 mediation process; requiring the mediator or 21 arbitrator to meet certain certification 22 requirements; removing a requirement relating 23 to development of an education program to 24 increase awareness of the operation of 25 homeowners' associations and the use of 26 alternative dispute resolution techniques; 27 providing effective dates. 28 29 30 31 41 2:12 PM 03/05/07 s0902.ri13.001
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