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Recent Changes to

Florida’s Condominium Act

Presented by: Legal Education Department

Attorneys’ Title Fund Services, LLC



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Recent Change’s to Florida Condominium Act

1 “Recent Changes to Florida’s Condominium Act” Slides 1

2 Aventura Mgmt., LLC v. Spiaggia Ocean Condo. Ass’n, Inc., 105 So. 3d 637 (Fla. 3d DCA 2013) 31

3 Barnes v. Castle Beach Club Condo. Ass’n, Inc., 106 So. 3d 86 (Fla. 3d DCA 2013) 42

4 Laws of Fla. ch. 2013-122 44

5 Fla. S. Comm. on Regulated Indus., 2013 Summary of Legis. Passed, CS/CS/SB 120 – Condominiums (2013) 55

6 Laws of Fla. ch. 2013-188 57

7 Fla. H. Comm. on Regulated Indus., 2013 Summary of Legis. Passed, CS/CS/CS/HB 73 – Residential Properties (2013) 96

1

Recent Changes to Florida’s Condominium Act

Maggie Atkins, Esq.Legal & Branch Education Manager

[email protected]

Materials: http://www.thefund.com/content/_files/Portal/Services/EdMaterials/CondoMaterials.pdf

Course Credits

Bar course # 130474N1.0 General CLER credit1.0 Real Estate Certification credit

NALA 1.0 hourContact information:

Maggie [email protected] ext. 7474

2


F.S. ch. 718Laws of Fla. ch. 2013‐122 (effective June 6)Laws of Fla. ch. 2013‐188 (effective July 1)


StructurePart I – General ProvisionsPart II – Rights and Obligations of DevelopersPart III – Rights and Obligations of AssociationPart IV – Special Types of CondominiumsPart V – Regulation and Disclosure Prior to Sale of Residential CondominiumsPart VI – Conversions to CondominiumPart VII – Distressed Condominium Relief

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Declaration or Condo Act?

Condo act Requires certain terms in governing documentsActs as a supplement when declaration is silentCan override terms of declaration in some instances

DeclarationCovers items not covered by statuteContractual issues exist between owners and lien holders relative to association

SAFE HARBOR

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Safe Harbor Provision

“A unit owner, regardless of how his or her title has been acquired, including by purchase at a foreclosure sale or by deed in lieu of foreclosure, is liable for all assessments which come due while he or she is the unit owner. Additionally, a unit owner is jointly and severally liable with the previous owner for all unpaid assessments that came due up to the time of transfer of title.”

F.S. § 718.116(1)(a)

Safe Harbor Updates

Aventura Mgmt., LLC v. Spiaggia Ocean Condo. Ass’n, Inc., 105 So. 3d 637 (Fla. 3d DCA 2013)Barnes v. Castle Beach Club Condo. Ass’n, Inc., 106 So. 3d 86 (Fla. 3d DCA 2013)

5

CONDOMINIUM CREATION

Condominium Creation

All units described in a declaration (or phase amendment) come into existence when the declaration (or phase amendment) is recorded, regardless of state of completion or any other requirement or description in the declaration

F.S. § 718.104(2) (Laws of Fla. ch. 2013‐122)

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Recording of Declaration

Raises from 3 years to 5 years from the date of recording the declaration for the clerk to notify the association’s registered agent it is still holding deposits related to recording exhibits

F.S. § 718.105(4)(c) (Laws of Fla. ch. 2013‐122)

Formation of Condominium

Changes deadline for action to determine whether declaration or other condominium document complies with mandatory requirements for formation of condominium from:

3 years from recording the declaration

to first to occur of:3 years from recording certification of surveyor and mapper; or 3 years from recording instrument transferring title to a unit not accompanied by recorded assignment of developer rights in favor of grantee

F.S. § 718.110(10) (Laws of Fla. ch. 2013‐122)

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THE ASSOCIATION

Purchase of Leases

The association may purchase land or recreation leases by:

Stating and fully describing the land or leasehold in the declaration at recording; orIf entered into 12 months or later from the date of recording the declaration:

Vote or written consent of a majority of the total voting interests; orAs authorized by the governing documents for material alterations or substantial additions to the real property.

F.S. § 718.111(8) (Laws of Fla. ch. 2013‐188)

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Recreation Leases & Memberships

Majority vote of membership interests required to enter into recreation leases, memberships, etc. after 12 months from date of:

Recording of certificate of surveyor and mapper; orRecording instrument transferring title to unit without accompanying assignment of developer rights

F.S. § 718.114 (Laws of Fla. ch. 2013‐122)

Insurance

Unit owner responsible for costs of reconstruction of condominium property for:

Property unit owner is required to carry property insurance; andProperty not paid by insurance due to owner’s intentional conduct, negligence, or failure to comply with governing documents

F.S. § 718.111(11)(g)2. (Laws of Fla. ch. 2013‐188)

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Insurance

Unit owner’s responsibility extends to:Costs of repair or replacement of personal property of other unit owners or association; andOther real or personal property unit owners required to insure

Insurance

Costs of reconstruction work undertaken by association chargeable to unit ownerCosts enforceable as assessmentsCosts collected in same manner as assessments under F.S. § 718.116

F.S. § 718.111(11)(g)2. (Laws of Fla. ch. 2013‐188)

10

Insurance

Clarification that damages resulting in need to repair or replace condominium property required to be insured by association and paid for as a common expense must be for damages caused by an insurable event

F.S. § 718.111(11)(j) (Laws of Fla. ch. 2013‐188)

Official Records

Members or their authorized representative may use portable devices to make electronic copies or photographs of official records instead of being provided with copies from associationAssociation may not charge for use of electronic devices

F.S. § 718.111(12)(c) (Laws of Fla. ch. 2013‐188)

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Official Records

Personal Information Deleted ‐ provision that unit owners may consent in writing to disclosure of otherwise protected personal information, such as fax numbers, emergency contact information, e‐mail addresses, telephone numbers, etc. Express provision regarding unit owner directory

F.S. § 718.111(12)(c)5. (Laws of Fla. ch. 2013‐188)

Unit Owner Directory

May Always Be IncludedUnit owner’s nameUnit designationParcel addressMailing addressIf provided to fulfill notice requirements only:

Other address(es)E‐mail addressFacsimile number

Included Unless Request Made in Writing to Exclude

Telephone number

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Financial Reporting

Annual revenue requirements for type of required financial statement changed to:

Less than $150,000 ‐ report of cash receipts and expenditures $150,000 or more, but less than $300,000 –compiled financial statement$300,000 or more, but less than $500,000 –reviewed financial statement$500,000 or more – audited financial statement

F.S. § 718.111(13) (Laws of Fla. ch. 2013‐188)

Financial Reporting

Associations operating fewer than 50 units only required to prepare report of cash receipts and expenditures, no matter annual revenue

F.S. § 718.111(13)(b)2. (Laws of Fla. ch. 2013‐188)

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Financial Reporting

All unit owners, including developer, can vote on issues related to preparation of financial reports

If no turnoverFrom date of incorporation of association To end of 2d fiscal year after fiscal year in which:


F.S. § 718.111(13)(d) (Laws of Fla. ch. 2013‐122)

Turnover

All 7 turnover triggers remainClarifies turnover is when first of 7 triggers occur7 year turnover trigger:

All 7 year triggers changed from date of recording declaration to 7 years from first to occur of:


F.S. § 718.301(1)(g) (Laws of Fla. ch. 2013‐122)

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Turnover

In addition to all other turnover documents, developer must provide copy of:

Recorded certificate of surveyor and mapper; orFirst recorded instrument transferring title to unit without accompanying assignment of developer rights

F.S. § 718.301(4)(q) (Laws of Fla. ch. 2013‐122)

BYLAWS

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Board of Directors

Two Year Staggered TermsTwo year staggered terms are eliminatedIf bylaws or articles permit 2 year terms, board members may serve 2 year termsNo approval to serve 2 year terms required by voting interests

F.S. § 718.112(2)(d)2. (Laws of Fla. ch. 2013‐188)

Board of Directors

Director EligibilityUnit owners must be eligible to be a candidate to serve on the board of directors on the deadline date for submitting the notice of intent to run

40 days prior to the election

Unit owners ineligible to be candidates and may not be listed on ballot if:

Suspended or removed by divisionDelinquent in paying any monetary obligation to association

F.S. § 718.112(2)(d)2. (Laws of Fla. ch. 2013‐188)

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Board of Directors

Board Member CertificationDirector’s written certification or educational certificate must be kept for inspection by the members for the longer of:

5 years from director’s election; orDuration of director’s uninterrupted term

F.S. § 718.112(2)(d)4.b. (Laws of Fla. ch. 2013‐188)

Board of Directors

Challenges to election process must be commenced within 60 days after election results announced

F.S. § 718.112(2)(d)4.c.

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Annual Budget

Developer may waive reserves or reduce funding of reserves

If no turnoverUntil end of 2d fiscal year after fiscal year in which:


F.S. § 718.112(2)(f)2. (Laws of Fla. ch. 2013‐122)

Recall of Board Members

1. Vote or agreement in writing by a majority of the voting interests.

2. Within 5 business days, board notices and holds a meeting

Board may certify the recall and recall is immediately effective; orFile an arbitration petition with the divisionF.S. § 718.112(2)(j) (Laws of Fla. ch. 2013‐188)

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If board fails to hold board meeting or file petition with division, unit owner representative may file the petitionPetition must be filed within 60 days of the expiration of the 5 business day periodReview is limited to sufficiency of service on the board and facial validity of the agreement or ballots filedF.S. § 718.112(2)(j)5. (Laws of Fla. ch. 2013‐188)


Recalled board member may file arbitration petition with divisionPetition is limited to validity of recallPetition must be filed within 60 days of recall certification

F.S. § 718.112(2)(j)7. (Laws of Fla. ch. 2013‐188)

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Division cannot accept any arbitration petitions when:

60 or fewer days to scheduled reelection of recalled board member60 or fewer days since election of recalled board member

F.S. § 718.112(2)(j)8. (Laws of Fla. ch. 2013‐188)

HURRICANE PROTECTION

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Hurricane Protection

Code‐compliant doors specifically listed as type of hurricane protectionAmendments to specifically list in all affected sections hurricane protection other than hurricane shutters (e.g. impact glass, code‐compliant windows and doors, etc.)

F.S. §§ 718.113(5) & 718.115(1)(e) (Laws of Fla. ch.2013‐188)

SUSPENSION OF USERIGHTS

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Suspension of Use Rights

Failure to comply with governing documentsFailure to pay monetary obligations

No changes in 2013

Failure to Comply with Governing Documents

Right to use common elements, common facilities, or association property can be suspended for a “reasonable period of time” upon notice and hearingSuspension of use rights does not apply to:

Limited common elements intended for use only by the owner’s unitCommon elements needed to access the unitUtility services provided to the unitParking spacesElevators

F.S. § 718.303(3)(a) (Laws of Fla. ch. 2013‐188)

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SPECIAL TYPES OF

CONDOMINIUMS

Phase Condominiums

All phases must be added to the condominium within 7 years after the date of recording the original declaration of condominium

Unless an amendment extending the 7 year period is approved by the unit owners

F.S. § 718.403(1)(a) (Laws of Fla. ch. 2013‐188)

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Phase Condominiums

All phases must be added to the condominium within 7 years after the first to occur of:


Unless an amendment extending the 7 year period is approved by the unit owners

F.S. § 718.403(1)(a) (Laws of Fla. ch. 2013‐122)

Amendment to Extend

Requires approval of owners necessary to amend the declarationMay only be submitted for approval during the last 3 years of the 7 year periodMust describe the period within which all phases must be added

F.S. § 718.403(1) (Laws of Fla. chs. 2013‐122 & 2013‐188)

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Amendment to Extend

The period may not exceed 10 years from:Recording original declaration (Laws of Fla. ch.2013‐188)Earlier of (Laws of Fla. 2013‐122):

Recording certificate of surveyor and mapper; orRecording first instrument transferring title to unit without accompanying assignment of developer rights

F.S. § 718.403(1)

Condominium Within Condominium

Secondary Unit

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Secondary Condominium Voting Rights

2d ass’n act on behalf of all 2d unit owners2d ass’n exercises all rights of 2d unit owners in 1st ass’n2d ass’n designates representative to cast vote of subdivided parcel in 1st ass’n

If no person designated, president of 2d ass’nvotes

F.S. § 718.406(2) (Laws of Fla. ch. 2013‐188)

Declaration Requirements

Original 1st declaration must provide for creation of 2d condominiumTo amend 1st declaration to allow creation of 2d condominium, majority of record owners of 1st condominium parcels must join in amendment

F.S. § 718.406(3) (Laws of Fla. ch. 2013‐188)

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Creation of Secondary Condominium

1st condo board must approve creation of 2d condo1st condo unit owners who will not be part of 2d condo do not have approval rights for creation of 2d condo or contents of its declaration

F.S. § 718.406(4) (Laws of Fla. ch. 2013‐188)

Creation of Secondary Condominium

Express authority for approval rights to create 2d condo and declaration provisions is with:

Board of 1st condominiumOwner of subdivided parcelHolders of liens of subdivided parcel

All above parties must execute 2d declarationF.S. § 718.406(4) (Laws of Fla. ch. 2013‐188)

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Declarations

2d unit owner subject to 1st and 2d declarations

F.S. § 718.406(5) (Laws of Fla. ch. 2013‐188)

Insurance

1st ass’n may provide insurance for 2d condo common elements if 1st declaration permits

F.S. § 718.406(6) (Laws of Fla. ch. 2013‐188)

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Hurricane Protection

1st condo board may adopt hurricane protection specifications for each building where a subdivided parcel is located

F.S. § 718.406(7) (Laws of Fla. ch. 2013‐188)

Registration with Primary Association

2d unit owner (or first mortgage holder) may register with 1st ass’n by delivering written notice to 1st ass’nIf notice provided, 1st ass’n must provide written notice to 2d unit owner and first mortgagee 30 days before starting foreclosure against subdivided parcel for failure to pay assessments or other amounts due 1st ass’nForeclosure not effective without affidavit written notice sent to registered parties

F.S. § 718.406(8) (Laws of Fla. ch. 2013‐188)

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Payoff Rights

Registered 2d unit owner has right to pay proportionate amount of delinquent assessment attributable to 2d unitUpon payment, 1st ass’n must modify or partially release recorded lien so 2d unit not encumberedOr, 2d unit owner or mortgagee may pay allamounts due and seek reimbursement from 2d ass’n

F.S. § 718.406(8) (Laws of Fla. ch. 2013‐188)

Conflicts

If there is a conflict between 1st and 2d declaration, 1st declaration controls

F.S. § 718.406(9) (Laws of Fla. ch. 2013‐188)

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Common Expense

All common expenses due to 1st ass’n for a subdivided parcel are common expense of 2d ass’n and collected by ass’n from its members and paid to 1st ass’n

F.S. § 718.406(10) (Laws of Fla. ch. 2013‐188)

Course Credits

Bar course # 1304747N1.0 General CLER credit1.0 Real Estate Certification credit

NALA 1.0 hourContact information:

Maggie [email protected] ext. 7474

Third District Court of Appeal State of Florida, January Term, A.D. 2013

Opinion filed January 23, 2013. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D11-2545

Lower Tribunal No. 10-59605 ________________

Aventura Management, LLC, a Florida Limited Liability Company, Appellant,

vs.

Spiaggia Ocean Condominium Association, Inc., a Florida Non-

Profit Corporation, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Ronald C. Dresnick, Judge. Stratton & Roman and Douglas D. Stratton and Brett Feinstein, for appellant. Ramon C. Palacio; Cole, Scott & Kissane and Benjamin M. Esco; Doug H. Stein,for appellee. Before SHEPHERD and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.

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CORTIÑAS, J.

Aventura Management, LLC (Appellant) seeks review of a final order

granting summary judgment to Spiaggia Ocean Condominium Association, Inc.

(Appellee). We reverse.

In July 2008, Appellee initiated lien foreclosure proceedings against the

owner of unit #402 (the Unit) in the Spiaggia Ocean Condominium located at 9499

Collins Avenue in Surfside. In July of 2009, Appellee obtained a default final

judgment of foreclosure and a foreclosure sale was scheduled for December 17,

2009. In September 2009, the holder of the first mortgage on the Unit, the Bank of

New York (the Bank), initiated foreclosure proceedings against the owner and

named Appellee as a defendant.

The first mortgage far exceeded the value of the Unit. At auction, Appellee

placed the sole bid and took title subject to the first mortgage held by the Bank.

Appellee then proceeded to rent the Unit. The Bank subsequently obtained a final

judgment of foreclosure, and a second foreclosure sale was scheduled on

September 30, 2010. Appellant was the successful bidder and obtained title to the

Unit, at which point Appellee relinquished its ownership interest.

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After Appellant had acquired the Unit, Appellee attempted to recover from

Appellant the past due assessments, late fees, and interest that had accrued since

the original owner defaulted.1 Appellee maintained that, as third party purchaser,

Appellant was liable under section 718.116(1)(a), Florida Statutes (2009) (the

Statute), which provides in pertinent part:

A unit owner, regardless of how his or her title has been acquired, including by purchase at a foreclosure sale or by deed in lieu of foreclosure, is liable for all assessments which come due while he or she is the unit owner. Additionally, a unit owner is jointly and severally liable with the previous owner for all unpaid assessments that came due up to the time of transfer of title.

After receiving a demand for payment, Appellant claimed that it was not

liable for the past due assessments. Rather, Appellant argued that as an intervening

owner between the prior owner and Appellant, Appellee was responsible for the

assessments owed by the previous owner. Appellant brought a declaratory

judgment action seeking an interpretation of the Statute, arguing that it was liable

only for assessments accruing after it took title to the Unit.2 Both parties moved

for summary judgment, and the trial court granted Appellee’s motion, ruling that

Appellee’s lien did not merge with the certificate of title it was issued in

connection with its foreclosure action, and that Appellant was obligated to pay all

1 Additionally, Appellee demanded reasonable attorneys’ fees and costs incurred by Appellee in its attempts to collect the past due assessments. 2 In its complaint, Appellant also sought unjust enrichment and statutory damages.

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amounts owed on the Unit.3 The trial court further held that Appellee was not

jointly and severally liable to Appellant for any amounts. This appeal followed.

The Statute clearly provides that “a unit owner is jointly and severally liable

with the previous owner for all unpaid assessments that came due up to the time of

transfer of title.” § 718.116(1)(a) (emphasis added). Appellee was the previous

owner of the Unit. The plain language of the Statute does not state or suggest that

an exception is to be made when the previous owner is the condominium

association. Appellee raises three arguments against following the plain meaning

of the Statute, none of which are persuasive.

First, Appellee argues that its lien did not merge with the certificate of title

issued at the December 2009 foreclosure sale. Merger exists, according to

Appellee, only where the parties demonstrate a clear intent for merger to take

place. See Lassiter v. Kaufman, 581 So. 2d 147, 148 (Fla. 1991) (“[A]n intention

that a transaction operate as merger is essential to a merger in equity.”); Contos v.

Lipsky, 433 So. 2d 1242, 1245 (Fla. 3d DCA 1983) (in the absence of a showing of

express or implied intent, a court “must presume that the lessee . . . intended the

result most beneficial to her, that is, no merger.”). Lassiter and Contos, however,

do not involve mortgage foreclosure actions. It is indisputable that a mortgage

3 Appellant was found liable for all amounts owed as of the date it was issued the certificate of title, including amounts accruing while Appellee held title, less all amounts received by Appellee through rents or other mitigation efforts.

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merges with a final judgment of foreclosure and is extinguished by the sale of the

underlying property. See, e.g., One 79th St. Estates, Inc. v. Am. Inv. Servs., 47 So.

3d 886, 889 (Fla. 3d DCA 2010) (“When a mortgage is foreclosed, the mortgage is

‘merged’ into the final judgment and loses its separate identity.”); Nack Holdings,

LLC v. Kalb, 13 So. 3d 92, 94 n.2 (Fla. 3d DCA 2009) (“The mortgage is merged

into the judgment, is thereby extinguished, and ‘loses its identity.’”) (citation

omitted). Appellee is correct that the lien survives the foreclosure; merger of the

lien with the final judgment is incompatible with the liabilities established by the

Statute. However, while the Statute clearly indicates that the lien survives a

foreclosure, it just as clearly indicates that the prior owner is jointly and severally

liable with the current owner for all past due assessments up to the time of the

transfer of title.

Appellee also argues that an exception should be read into the Statute when

the condominium association itself is an owner, to avoid an otherwise absurd

result. The Statute is one portion of a general framework, according to Appellee,

designed to provide condominium associations with a mechanism for the

preservation of their rights with regard to fee assessments. To that end, section

718.116(5)(a) provides “[t]he association has a lien on each condominium parcel to

secure the payments of assessments.” § 718.116(5)(a), Fla. Stat. (2009).

Similarly, section 718.116(6)(a) states, in pertinent part, “[t]he association may

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bring an action in its name to foreclose a lien for assessments in the manner a

mortgage of real property is foreclosed and may also bring an action to recover a

money judgment for unpaid assessments without waiving any claim of lien.” §

718.116(6)(a), Fla. Stat. (2009). The Association posits that the sole purpose of

this statutory scheme is to provide condominium associations with the means by

which they can protect their interests, and that it would be absurd to apply the

Statute in such a way as to deprive a condominium association of its right to collect

past due assessments.

This argument fails. The Statute provides a remedy for condominium

associations faced with owners in default, establishing the class of persons from

whom a condominium association may demand relief for past due assessments.

That class includes current owners and prior owners. However, the Statute

nowhere requires a condominium association to position itself as the current or

prior owner. That outcome is the result of external market forces, namely that

condominium associations may find, as Appellee did, that no one is willing to bid

on a foreclosed unit at a foreclosure sale.4

4 We note, however, that nothing in the Statute precludes entities, such as appellee, from attempting to collect unpaid assessments from the prior owner from whom it purchased the Unit, subject of course to any applicable statute of limitations. § 718.116(1)(a), Fla. Stat. (2009). Joint and several liability for unpaid assessments between the current and prior owner is established by the Statute “at the time of transfer of title,” and it is not extinguished by subsequent transfers of title.

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Finally, Appellee argues that Appellant was on notice of the amounts owed

on the Unit, for which it would be held liable. When Appellant purchased the

Unit, it had access to the Declaration of Condominium of Spiaggia Ocean

Condominium, Appellee’s claim of lien, Appellee’s lis pendens, and Appellee’s

default final judgment of foreclosure against the original owner.5 This argument,

too, fails. Nothing in the record demonstrates that Appellant was unambiguously

informed by Appellee that liability for past due assessments would be borne

entirely by Appellant and the original defaulting owner, and that Appellant would

not have recourse to the statutorily established joint and several liability.

Reversed.

SCHWARTZ, Senior Judge, concurs.

5 The portion of the Declaration of Condominium cited by Appellee contains identical language to section 718.116(6)(a), stating, in pertinent part, “The association may bring an action in its name to foreclose a lien for assessments in the manner a mortgage of real property is foreclosed and may also bring an action to recover a money judgment for unpaid assessments without waiving any claim of lien.”

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Aventura Mgmt., etc., v. Spiaggia Ocean Condo. Ass’n, etc. Case No. 3D11-2545

SHEPHERD, J., dissenting.

I respectfully dissent.

The majority opinion presents a conundrum. It first concludes, correctly in

my view, that Spiagga Ocean Condominium Association’s statutory lien, afforded

by section 718.116(5)(a), Florida Statutes (2008), “survives the foreclosure.” Maj.

Op. at 5; see also Lassiter v. Kaufman, 581 So. 2d 147, 148 (Fla. 1991); Contos v.

Lipsky, 433 So. 2d 1242, 1245-46 (Fla. 3d DCA 1983). It then invokes subsection

(1)(a) of the same statute, stating that “the prior owner,” which it interprets to be

the Association, “is jointly and severally liable with the current owner for all past

due assessments up to the time of the transfer of title” to the Association. The

opinion begs the question: what happens to the lien? I gather the majority would

respond that it is forever suspended. However, there exists a way to give meaning

to both the statutory lien in subsection 5(a) and the statutory language of

subsection (1)(a).

The way begins with the application of the familiar rule that, wherever

possible, construction of any law or constitutional provision is favored which gives

effect to every clause and every part thereof. Burnsed v. Seaboard Coastline R.R.

Co., 290 So. 2d 13, 16 (Fla. 1974) (constitutional provisions); Goode v. State, 50

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Fla. 45, 45, 39 So. 461, 463 (1905) (statutes). A corollary to this rule, of course, is

that a construction that would leave without effect part of the language used should

be rejected if possible. See State v. M.M., 407 So. 2d 987, 990 (Fla. 4th DCA

1981).

Applying these rules to the case before us, it is apparent the fundamental

purpose of the Legislature in promulgating section 718.116 was to assist

condominium associations to be made whole in the collection of past due

assessments, while at the same time not unduly impairing the value of collateral

held by first mortgagees. In furtherance of this design, the Legislature has given

condominium associations a statutory lien on each condominium unit over which it

has jurisdiction, to secure payment of assessments without the necessity of filing a

claim of lien in the public records, with the single exception of first mortgagees,

where record notice is required. § 718.116(5)(a).

Thus, under the legislative scheme, third-party purchasers of condominium

units, like Aventura Management, LLC, are subject to old-fashioned caveat emptor

principles. Their protection lies in satisfying themselves before purchase, whether

by contract or judicial sale, of the status of past-due assessments on the unit. To

this end, section 718.116(8)(a), Florida Statutes (2008), obligates a condominium

association, upon written request, to provide a statement to “a unit owner or his or

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10

her designee” of all assessments and other moneys owed to the Association by the

unit owner with respect to the parcel.

Aventura Management, LLC and the majority focus almost exclusively on

subsection (1)(a) of section 718.116 of the statute. However, statutory

interpretation is a holistic endeavor. I find no incongruity or inconsistency in the

notion of joint and several liability between Aventura Management, LLC and the

condominium association6 and execution by the Association on its admittedly

existing statutory lien right. The former sounds in law; the latter is an equitable

action. Section 718.116 expressly authorizes the condominium association to

proceed in the alternative as befits its interests. See § 718.116(6)(a), Fla. Stat.

(2008) (“The association may bring an action in its name to foreclose a lien for

assessments in the manner a mortgage of real property is foreclosed and may also

bring an action to recover a money judgment for unpaid assessments without

waiving any claim of lien.”) (emphasis added). Cf. Royal Palm Corp. Ctr. Ass’n v.

PNC Bank, NA, 89 So. 3d 923, 929 (Fla. 4th DCA 2012) (explaining that under

the traditional common law, upon a default by the mortgagor, a mortgagee “may

sue either on the note or foreclose on the mortgage, and may pursue all remedies

“at the same time or consequently”). 6 Indeed, I think it quite possible, but not necessary, for me to parse here, that the Legislature might well have meant the phrase “the previous owner” in section 718.116(1)(a) to include any previous owner. The weight placed by the majority on the definite article might well be greater than it legally can bear.

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The order of the trial court finds the Association’s lien survives the

foreclosure and sale by the first mortgagee. It also finds the acquisition of title by

Spiagga Ocean Condominium Association, Inc. does not operate to relieve

Aventura Management, LLC of its liability for unpaid assessments prior to the time

it took title to the unit. The statute could be clearer. However, based upon my

study, I believe the decision of the trial court most accurately reflects the intention

of the legislature as expressed by the statute. I would affirm the decision of the

trial court.

41

Third District Court of Appeal State of Florida, January Term, A.D. 2013

Opinion filed February 6, 2013. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D12-860

Lower Tribunal No. 10-12044 ________________

Josef Barnes,

Appellant,

vs.

Castle Beach Club Condominium Association, Inc., Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto, Judge. Arnaldo Velez, for appellant. Alexander Edward Barthet, Patrick Charles Barthet and Paul D. Breitner, for appellee. Before SHEPHERD, CORTIÑAS and FERNANDEZ, JJ. FERNANDEZ, J.

Josef Barnes, the appellant-owner, appeals the trial court’s post-judgment

order denying Barnes’ motion for determination of amount due in an action

42

2

involving a dispute that arose between Barnes and the appellee, Castle Beach Club

Condominium Association. We reverse.

Barnes was the successful bidder at a foreclosure sale of eight condominium

units. The trial court found that the Association’s lien did not merge with the

Certificate of Title that was issued in connection with its own foreclosure action.

The court further found that Barnes was obligated to pay the Association the

amounts owed on the subject condominium units which had accrued prior to the

date the Association was issued the Certificate of Title.

The issue before this Court is the exact issue raised in Aventura

Management, LLC, v. Spiaggia Ocean Condominium Association, Inc., No. 3D11-

2545 (Fla. 3d DCA, Jan. 23, 2013), where we held that under section

718.116(1)(a), Florida Statutes (2009), there is no exception to be made for joint

and several liability for unpaid assessments that come due up to the transfer of title

when the “previous owner” is the condominium association. We therefore reverse

the order under review on the authority of Aventura Management.

Reversed.

SHEPHERD, J., concurring dubitante.

43

CHAPTER 2013-122

Committee Substitute forCommittee Substitute for Senate Bill No. 120

An act relating to condominiums; amending s. 718.104, F.S.; allowingcondominium units to come into existence regardless of requirements orrestrictions in a declaration; amending s. 718.105, F.S.; extending theamount of time that a clerk may hold a sum of money before notifying theregistered agent of an association that the sum is still available and thepurpose for which it was deposited; amending s. 718.110, F.S.; changingthe requirements relating to the circumstances under which a declarationof condominium or other documents are effective to create a condominium;making technical changes; amending s. 718.111, F.S.; revising theconditions under which unit owners may vote on issues related to thepreparation of financial reports; making technical changes; amending s.718.112, F.S.; revising the conditions under which a developer may vote towaive or reduce the funding of reserves; making technical changes;amending s. 718.114, F.S.; revising the conditions under which a developermay acquire leaseholds, memberships, or other possessory or use interests;making technical changes; amending s. 718.301, F.S.; revising theconditions under which unit owners other than the developer are entitledto elect at least a majority of the members of a board of administration;revising requirements related to the documents that the developer mustdeliver to the association; making technical changes; amending s. 718.403,F.S.; revising the conditions under which a developer may amend adeclaration of condominium governing a phase condominium; providing foran extension of the 7-year period for the completion of a phase; providingrequirements for the adoption of an amendment; providing that anamendment adopted pursuant to this section is exempt from otherrequirements of law; providing an effective date.

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

Section 1. Subsection (2) of section 718.104, Florida Statutes, is amendedto read:

718.104 Creation of condominiums; contents of declaration.—Everycondominium created in this state shall be created pursuant to this chapter.

(2) A condominium is created by recording a declaration in the publicrecords of the county where the land is located, executed and acknowledgedwith the requirements for a deed. All persons who have record title to theinterest in the land being submitted to condominium ownership, or theirlawfully authorized agents, must join in the execution of the declaration.Upon the recording of the declaration, or an amendment adding a phase tothe condominium under s. 718.403(6), all units described in the declarationor phase amendment as being located in or on the land then being submittedto condominium ownership shall come into existence, regardless of the state

1CODING: Words stricken are deletions; words underlined are additions. 44

of completion of planned improvements in which the units may be located orany other requirement or description that a declaration may provide. Uponrecording the declaration of condominium pursuant to this section, thedeveloper shall file the recording information with the division within 120calendar days on a form prescribed by the division.

Section 2. Paragraph (c) of subsection (4) of section 718.105, FloridaStatutes, is amended to read:

718.105 Recording of declaration.—

(4)

(c) If the sum of money held by the clerk has not been paid to thedeveloper or association as provided in paragraph (b) within 5 3 years afterthe date the declaration was originally recorded, the clerk may notify, inwriting, the registered agent of the association that the sum is still availableand the purpose for which it was deposited. If the association does not recordthe certificate within 90 days after the clerk has given the notice, the clerkmay disburse the money to the developer. If the developer cannot be located,the clerk shall disburse the money to the Division of Florida Condominiums,Timeshares, and Mobile Homes for deposit in the Division of FloridaCondominiums, Timeshares, and Mobile Homes Trust Fund.

Section 3. Subsection (10) of section 718.110, Florida Statutes, isamended to read:

718.110 Amendment of declaration; correction of error or omission indeclaration by circuit court.—

(10) If there is an omission or error in a declaration of condominium, orany other document required to establish the condominium, and the whichomission or error would affect the valid existence of the condominium, thecircuit court may has jurisdiction to entertain a petition of one or more of theunit owners in the condominium, or of the association, to correct the error oromission, and the action may be a class action. The court may require thatone or more methods of correcting the error or omission be submitted to theunit owners to determine the most acceptable correction. All unit owners, theassociation, and the mortgagees of a first mortgage of record must be joinedas parties to the action. Service of process on unit owners may be bypublication, but the plaintiff must furnish every unit owner not personallyserved with process with a copy of the petition and final decree of the court bycertified mail, return receipt requested, at the unit owner’s last knownresidence address. If an action to determine whether the declaration oranother condominium document complies with the mandatory requirementsfor the formation of a condominium is not brought within 3 years of therecording of the certificate of a surveyor and mapper pursuant to s.718.104(4)(e) or the recording of an instrument that transfers title to aunit in the condominium which is not accompanied by a recorded assignmentof developer rights in favor of the grantee of such unit, whichever occurs first,

Ch. 2013-122 LAWS OF FLORIDA Ch. 2013-122


recording of the declaration, the declaration and other documents willeffectively shall be effective under this chapter to create a condominium, as ofthe date the declaration was recorded, regardless of whether whether or notthe documents substantially comply with the mandatory requirements oflaw. However, both before and after the expiration of this 3-year period, thecircuit court has jurisdiction to entertain a petition permitted under thissubsection for the correction of the documentation, and other methods ofamendment may be utilized to correct the errors or omissions at any time.

Section 4. Paragraph (d) of subsection (13) of section 718.111, FloridaStatutes, is amended to read:

718.111 The association.—

(13) FINANCIAL REPORTING.—Within 90 days after the end of thefiscal year, or annually on a date provided in the bylaws, the association shallprepare and complete, or contract for the preparation and completion of, afinancial report for the preceding fiscal year. Within 21 days after the finalfinancial report is completed by the association or received from the thirdparty, but not later than 120 days after the end of the fiscal year or other dateas provided in the bylaws, the association shall mail to each unit owner at theaddress last furnished to the association by the unit owner, or hand deliver toeach unit owner, a copy of the financial report or a notice that a copy of thefinancial report will be mailed or hand delivered to the unit owner, withoutcharge, upon receipt of a written request from the unit owner. The divisionshall adopt rules setting forth uniform accounting principles and standardsto be used by all associations and addressing the financial reportingrequirements for multicondominium associations. The rules must include,but not be limited to, standards for presenting a summary of associationreserves, including a good faith estimate disclosing the annual amount ofreserve funds that would be necessary for the association to fully fundreserves for each reserve item based on the straight-line accounting method.This disclosure is not applicable to reserves funded via the pooling method.In adopting such rules, the division shall consider the number of membersand annual revenues of an association. Financial reports shall be prepared asfollows:

(d) If approved by a majority of the voting interests present at a properlycalled meeting of the association, an association may prepare:

1. A report of cash receipts and expenditures in lieu of a compiled,reviewed, or audited financial statement;

2. A report of cash receipts and expenditures or a compiled financialstatement in lieu of a reviewed or audited financial statement; or

3. A report of cash receipts and expenditures, a compiled financialstatement, or a reviewed financial statement in lieu of an audited financialstatement.



Such meeting and approval must occur before the end of the fiscal year and iseffective only for the fiscal year in which the vote is taken, except that theapproval may also be effective for the following fiscal year. If With respect toan association to which the developer has not turned over control of theassociation, all unit owners, including the developer, may vote on issuesrelated to the preparation of the association’s financial reports for the first 2fiscal years of the association’s operation, from beginning with the date ofincorporation of the association through the end of the second fiscal yearafter the fiscal year in which the certificate of a surveyor and mapper isrecorded pursuant to s. 718.104(4)(e) or an instrument that transfers title toa unit in the condominium which is not accompanied by a recordedassignment of developer rights in favor of the grantee of such unit isrecorded, whichever occurs first declaration is recorded. Thereafter, all unitowners except the developer may vote on such issues until control is turnedover to the association by the developer. Any audit or review prepared underthis section shall be paid for by the developer if done before turnover ofcontrol of the association. An association may not waive the financialreporting requirements of this section for more than 3 consecutive years.

Section 5. Paragraph (f) of subsection (2) of section 718.112, FloridaStatutes, is amended to read:

718.112 Bylaws.—

(2) REQUIRED PROVISIONS.—The bylaws shall provide for the follow-ing and, if they do not do so, shall be deemed to include the following:

(f) Annual budget.—

1. The proposed annual budget of estimated revenues and expenses mustshall be detailed and must shall show the amounts budgeted by accounts andexpense classifications, including, if applicable, but not limited to, thoseexpenses listed in s. 718.504(21). A multicondominium association shalladopt a separate budget of common expenses for each condominium theassociation operates and shall adopt a separate budget of common expensesfor the association. In addition, if the association maintains limited commonelements with the cost to be shared only by those entitled to use the limitedcommon elements as provided for in s. 718.113(1), the budget or a scheduleattached to it must a schedule attached thereto shall show the amountbudgeted for this maintenance amounts budgeted therefor. If, after turnoverof control of the association to the unit owners, any of the expenses listed in s.718.504(21) are not applicable, they need not be listed.

2. In addition to annual operating expenses, the budget must shallinclude reserve accounts for capital expenditures and deferred maintenance.These accounts must shall include, but are not limited to, roof replacement,building painting, and pavement resurfacing, regardless of the amount ofdeferred maintenance expense or replacement cost, and for any other itemthat has a for which the deferred maintenance expense or replacement costthat exceeds $10,000. The amount to be reserved must shall be computed



using by means of a formula which is based upon estimated remaining usefullife and estimated replacement cost or deferred maintenance expense of eachreserve item. The association may adjust replacement reserve assessmentsannually to take into account any changes in estimates or extension of theuseful life of a reserve item caused by deferred maintenance. This subsectiondoes not apply to an adopted budget in which the members of an associationhave determined, by a majority vote at a duly called meeting of theassociation, to provide no reserves or less reserves than required by thissubsection. However, prior to turnover of control of an association by adeveloper to unit owners other than a developer pursuant to s. 718.301, thedeveloper may vote to waive the reserves or reduce the funding of reservesthrough the period expiring at the end of the second fiscal year after the fiscalyear in which the certificate of a surveyor and mapper is recorded pursuantto s. 718.104(4)(e) or an instrument that transfers title to a unit in thecondominium which is not accompanied by a recorded assignment ofdeveloper rights in favor of the grantee of such unit is recorded, whicheveroccurs first, for the first 2 fiscal years of the association’s operation,beginning with the fiscal year in which the initial declaration is recorded,after which time reserves may be waived or reduced only upon the vote of amajority of all nondeveloper voting interests voting in person or by limitedproxy at a duly called meeting of the association. If a meeting of the unitowners has been called to determine whether to waive or reduce the fundingof reserves, and no such result is achieved or a quorum is not attained, thereserves as included in the budget shall go into effect. After the turnover, thedeveloper may vote its voting interest to waive or reduce the funding ofreserves.

3. Reserve funds and any interest accruing thereon shall remain in thereserve account or accounts, and may shall be used only for authorizedreserve expenditures unless their use for other purposes is approved inadvance by a majority vote at a duly called meeting of the association. Priorto turnover of control of an association by a developer to unit owners otherthan the developer pursuant to s. 718.301, the developer-controlled associa-tion shall not vote to use reserves for purposes other than that for which theywere intended without the approval of a majority of all nondeveloper votinginterests, voting in person or by limited proxy at a duly called meeting of theassociation.

4. The only voting interests that which are eligible to vote on questionsthat involve waiving or reducing the funding of reserves, or using existingreserve funds for purposes other than purposes for which the reserves wereintended, are the voting interests of the units subject to assessment to fundthe reserves in question. Proxy questions relating to waiving or reducing thefunding of reserves or using existing reserve funds for purposes other thanpurposes for which the reserves were intended shall contain the followingstatement in capitalized, bold letters in a font size larger than any other usedon the face of the proxy ballot: WAIVINGOFRESERVES, INWHOLEOR INPART, OR ALLOWING ALTERNATIVE USES OF EXISTING RESERVESMAY RESULT IN UNIT OWNER LIABILITY FOR PAYMENT OF



UNANTICIPATED SPECIAL ASSESSMENTS REGARDING THOSEITEMS.

Section 6. Section 718.114, Florida Statutes, is amended to read:

718.114 Association powers.—An association may enter into agreementsto acquire leaseholds, memberships, and other possessory or use interests inlands or facilities such as country clubs, golf courses, marinas, and otherrecreational facilities, regardless of whether or not the lands or facilities arecontiguous to the lands of the condominium, if such lands and facilities areintended to provide enjoyment, recreation, or other use or benefit to the unitowners. All of these leaseholds, memberships, and other possessory or useinterests existing or created at the time of recording the declaration must bestated and fully described in the declaration. Subsequent to the recording ofthe declaration, agreements acquiring these leaseholds, memberships, orother possessory or use interests which are not entered into within 12months of the date of the recording of the certificate of a surveyor andmapperpursuant to s. 718.104(4)(e) or the recording of an instrument that transferstitle to a unit in the condominium which is not accompanied by a recordedassignment of developer rights in favor of the grantee of such unit, whicheveroccurs first, are following the recording of the declaration are a materialalteration or substantial addition to the real property that is associationproperty, and the association may not acquire or enter into such agreementsexcept upon a vote of, or written consent by, a majority of the total votinginterests or as authorized by the declaration as provided in s. 718.113. Thedeclaration may provide that the rental, membership fees, operations,replacements, and other expenses are common expenses and may imposecovenants and restrictions concerning their use and may contain otherprovisions not inconsistent with this chapter. A condominium associationmay conduct bingo games as provided in s. 849.0931.

Section 7. Subsections (1) and (4) of section 718.301, Florida Statutes, areamended to read:

718.301 Transfer of association control; claims of defect by association.

(1) If unit owners other than the developer own 15 percent or more of theunits in a condominium that will be operated ultimately by an association,the unit owners other than the developer are entitled to elect at least one-third of the members of the board of administration of the association. Unitowners other than the developer are entitled to elect at least a majority of themembers of the board of administration of an association, upon the first tooccur of any of the following events:

(a) Three years after 50 percent of the units that will be operatedultimately by the association have been conveyed to purchasers;

(b) Three months after 90 percent of the units that will be operatedultimately by the association have been conveyed to purchasers;



(c) When all the units that will be operated ultimately by the associationhave been completed, some of them have been conveyed to purchasers, andnone of the others are being offered for sale by the developer in the ordinarycourse of business;

(d) When some of the units have been conveyed to purchasers and none ofthe others are being constructed or offered for sale by the developer in theordinary course of business;

(e) When the developer files a petition seeking protection in bankruptcy;

(f) When a receiver for the developer is appointed by a circuit court and isnot discharged within 30 days after such appointment, unless the courtdetermines within 30 days after appointment of the receiver that transfer ofcontrol would be detrimental to the association or its members; or

(g) Seven years after the date of the recording of the certificate of asurveyor and mapper pursuant to s. 718.104(4)(e) or the recording of aninstrument that transfers title to a unit in the condominium which is notaccompanied by a recorded assignment of developer rights in favor of thegrantee of such unit, whichever occurs first; recordation of the declaration ofcondominium; or, in the case of an association that may ultimately operatemore than one condominium, 7 years after the date of the recording of thecertificate of a surveyor and mapper pursuant to s. 718.104(4)(e) or therecording of an instrument that transfers title to a unit which is notaccompanied by a recorded assignment of developer rights in favor of thegrantee of such unit, whichever occurs first, recordation of the declaration forthe first condominium it operates; or, in the case of an association operating aphase condominium created pursuant to s. 718.403, 7 years after the date ofthe recording of the certificate of a surveyor and mapper pursuant to s.718.104(4)(e) or the recording of an instrument that transfers title to a unitwhich is not accompanied by a recorded assignment of developer rights infavor of the grantee of such unit, whichever occurs first recordation of thedeclaration creating the initial phase, whichever occurs first. The developeris entitled to elect at least one member of the board of administration of anassociation as long as the developer holds for sale in the ordinary course ofbusiness at least 5 percent, in condominiums with fewer than 500 units, and2 percent, in condominiums with more than 500 units, of the units in acondominium operated by the association. After the developer relinquishescontrol of the association, the developer may exercise the right to vote anydeveloper-owned units in the same manner as any other unit owner exceptfor purposes of reacquiring control of the association or selecting the majoritymembers of the board of administration.

(4) At the time that unit owners other than the developer elect a majorityof the members of the board of administration of an association, thedeveloper shall relinquish control of the association, and the unit ownersshall accept control. Simultaneously, or for the purposes of paragraph (c) notmore than 90 days thereafter, the developer shall deliver to the association,at the developer’s expense, all property of the unit owners and of the



association which is held or controlled by the developer, including, but notlimited to, the following items, if applicable, as to each condominiumoperated by the association:

(a)1. The original or a photocopy of the recorded declaration of con-dominium and all amendments thereto. If a photocopy is provided, it mustshall be certified by affidavit of the developer or an officer or agent of thedeveloper as being a complete copy of the actual recorded declaration.

2. A certified copy of the articles of incorporation of the association or, ifthe association was created prior to the effective date of this act and it is notincorporated, copies of the documents creating the association.

3. A copy of the bylaws.

4. The minute books, including all minutes, and other books and recordsof the association, if any.

5. Any house rules and regulations that which have been promulgated.

(b) Resignations of officers and members of the board of administrationwho are required to resign because the developer is required to relinquishcontrol of the association.

(c) The financial records, including financial statements of the associa-tion, and source documents from the incorporation of the association throughthe date of turnover. The records must shall be audited for the period fromthe incorporation of the association or from the period covered by the lastaudit, if an audit has been performed for each fiscal year since incorporation,by an independent certified public accountant. All financial statements mustshall be prepared in accordance with generally accepted accountingprinciples and must shall be audited in accordance with generally acceptedauditing standards, as prescribed by the Florida Board of Accountancy,pursuant to chapter 473. The accountant performing the audit shall examineto the extent necessary supporting documents and records, including thecash disbursements and related paid invoices to determine if expenditureswere for association purposes and the billings, cash receipts, and relatedrecords to determine that the developer was charged and paid the properamounts of assessments.

(d) Association funds or control thereof.

(e) All tangible personal property that is property of the association,which is represented by the developer to be part of the common elements orwhich is ostensibly part of the common elements, and an inventory of thatproperty.

(f) A copy of the plans and specifications utilized in the construction orremodeling of improvements and the supplying of equipment to thecondominium and in the construction and installation of all mechanicalcomponents serving the improvements and the site with a certificate in



affidavit form of the developer or the developer’s agent or an architect orengineer authorized to practice in this state that such plans and specifica-tions represent, to the best of his or her knowledge and belief, the actualplans and specifications utilized in the construction and improvement of thecondominium property and for the construction and installation of themechanical components serving the improvements. If the condominiumproperty has been declared a condominium more than 3 years after thecompletion of construction or remodeling of the improvements, the require-ments of this paragraph do not apply.

(g) A list of the names and addresses, of which the developer hadknowledge at any time in the development of the condominium, of allcontractors, subcontractors, and suppliers utilized in the construction orremodeling of the improvements and in the landscaping of the condominiumor association property which the developer had knowledge of at any time inthe development of the condominium.

(h) Insurance policies.

(i) Copies of any certificates of occupancy that which may have beenissued for the condominium property.

(j) Any other permits applicable to the condominium property which havebeen issued by governmental bodies and are in force or were issued within 1year prior to the date the unit owners other than the developer took takecontrol of the association.

(k) All written warranties of the contractor, subcontractors, suppliers,and manufacturers, if any, that are still effective.

(l) A roster of unit owners and their addresses and telephone numbers, ifknown, as shown on the developer’s records.

(m) Leases of the common elements and other leases to which theassociation is a party.

(n) Employment contracts or service contracts in which the association isone of the contracting parties or service contracts in which the association orthe unit owners have an obligation or responsibility, directly or indirectly, topay some or all of the fee or charge of the person or persons performing theservice.

(o) All other contracts to which the association is a party.

(p) A report included in the official records, under seal of an architect orengineer authorized to practice in this state, attesting to required main-tenance, useful life, and replacement costs of the following applicablecommon elements comprising a turnover inspection report:

1. Roof.



2. Structure.

3. Fireproofing and fire protection systems.

4. Elevators.

5. Heating and cooling systems.

6. Plumbing.

7. Electrical systems.

8. Swimming pool or spa and equipment.

9. Seawalls.

10. Pavement and parking areas.

11. Drainage systems.

12. Painting.

13. Irrigation systems.

(q) A copy of the certificate of a surveyor and mapper recorded pursuantto s. 718.104(4)(e) or the recorded instrument that transfers title to a unit inthe condominium which is not accompanied by a recorded assignment ofdeveloper rights in favor of the grantee of such unit, whichever occurred first.


718.403 Phase condominiums.—

(1) Notwithstanding the provisions of s. 718.110, a developer maydevelop a condominium in phases, if the original declaration of condominiumsubmitting the initial phase to condominium ownership or an amendment tothe declaration which has been approved by all of the unit owners and unitmortgagees provides for and describes in detail all anticipated phases; theimpact, if any, which the completion of subsequent phases would have uponthe initial phase; and the time period (which may not exceed 7 years from thedate of recording the declaration of condominium) within which all phasesmust be added to the condominium and comply with the requirements of thissection and at the end of which the right to add additional phases expires.

(a) All phases must be added to the condominium within 7 years after thedate of the recording of the certificate of a surveyor and mapper pursuant tos. 718.104(4)(e) or the recording of an instrument that transfers title to a unitin the condominium which is not accompanied by a recorded assignment ofdeveloper rights in favor of the grantee of such unit, whichever occurs first,unless the unit owners vote to approve an amendment extending the 7-yearperiod pursuant to paragraph (b) of this section.



(b) An amendment to extend the 7-year period shall require the approvalof the owners necessary to amend the declaration of condominium pursuantto s. 718.110(1)(a). An extension of the 7-year period may be submitted forapproval only during the last 3 years of the 7-year period.

(c) An amendment must describe the time period within which all phasesmust be added to the condominium and such time period may not exceed 10years from the date of the recording of the certificate of a surveyor andmapper pursuant to s. 718.104(4)(e) or the recording of an instrument thattransfers title to a unit in the condominium which is not accompanied by arecorded assignment of developer rights in favor of the grantee of such unit,whichever occurs first.

(d) An amendment that extends the 7-year period pursuant to thissection is not subject to the requirements of s. 718.110(4).

Section 9. This act shall take effect upon becoming a law.

Approved by the Governor June 6, 2013.

Filed in Office Secretary of State June 6, 2013.



THE FLORIDA SENATE

2013 SUMMARY OF LEGISLATION PASSED

Committee on Regulated Industries

This summary is provided for information only and does not represent the opinion of any Senator, Senate Officer, or Senate Office.

CS/CS/SB 120 Page: 1

CS/CS/SB 120 — Condominiums by Rules Committee; Regulated Industries Committee; and Senator Latvala

The bill amends the Florida Condominium Act to clarify when a condominium is created. It

provides that, regardless of any requirement or description in a declaration of condominium that

may provide when a condominium is created, a condominium is created when the declaration is

recorded.

For the following procedural time periods, the bill substitutes the recording date of the certificate

of a surveyor and mapper, or the recording of an instrument that transfers title to a unit in the

condominium which is not accompanied by a recorded assignment of developer rights in favor of

the grantee of such unit (known as the first unit owner deed), whichever occurs first, rather than

the recording of the declaration of condominium:

The deadline to bring an action to correct an omission or error in a declaration, which

must be brought within 3 years after the recording of the first event;

The beginning of the 2-year time period, during which the developer and unit owners,

when the developer has not turned over control of the association, may vote to waive the

financial reporting requirement;

During the first 2 fiscal years, the date when the developer’s right to waive or reduce the

funding of reserves expires;

The beginning date for the 12-month period during which an association may enter into

agreements for leasehold interests or membership rights before such an agreement or

leasehold is considered a material alteration or substantial addition to the association

property which would require a majority vote of the total voting interests or as authorized

by the declaration; and

The beginning date for the time periods for the turnover of association control from the

developer to the unit owners.

These changes allow a developer to record a declaration, and thereby provide a description of the

property to a prospective buyer in compliance with the federal Interstate Land Sales Full

Disclosure Act.

The bill extends from 3 years to 5 years the period of time that a county clerk is required to hold

funds deposited by a developer who has not prepared and provided the surveyors certificate of

the land which will be a part of the condominium. This provides additional time for developers

to provide the surveyor’s certificate of the land to the county clerk.

The bill revises the 7-year period for completion of all phases of a condominium project, which

is one of the conditions that allows the election of a majority of non-developer board members.

The bill provides that the 7-year period runs from the date the surveyor’s affidavit of substantial

completion is recorded, or 7 years from the date the sale of a unit to a non-developer is recorded

in the initial phase of the condominium. The bill deletes from the current provision that

55

2013 Summary of Legislation Passed Committee on Regulated Industries


CS/CS/SB 120 Page: 2

established the beginning of this 7-year period from the date the declaration was recorded. The

bill also creates a mechanism to extend the 7-year time period for an additional 3 years.

If approved by the Governor, these provisions take effect upon becoming law.

Vote: Senate 40-0; House 71-1

56

CHAPTER 2013-188

Committee Substitute for Committee Substitute forCommittee Substitute for House Bill No. 73

An act relating to residential properties; amending s. 399.02, F.S.; exemptingcertain elevators from specific code update requirements; amending s.718.111, F.S.; revising requirements for an association’s approval of landpurchases and recreational leases; revising reconstruction costs for whichunit owners are responsible and authorizing the costs to be collected in aspecified manner; requiring an association to repair or replace as acommon expense certain condominium property damaged by an insurableevent; requiring an association to allow a member or the member’srepresentative to use certain portable devices to make electronic copies ofassociation records; prohibiting the association from charging the memberor representative for using the portable device; authorizing a condominiumassociation to print and distribute a member directory under certainconditions; revising requirements for the preparation of an association’sannual financial statement; amending s. 718.112, F.S.; revising terms ofmembers of an association’s board of administrators and revisingeligibility criteria for candidates; revising condominium unit ownermeeting notice requirements; providing for nonapplicability to associa-tions governing timeshare condominiums of certain provisions relating toelections of board members; revising recordkeeping requirements of acondominium association board; requiring commencement of challenges toan election within a specified period; providing requirements for challen-ging the failure of a board to duly notice and hold the required boardmeeting or to file the required petition for a recall; providing requirementsfor recalled boardmembers to challenge the recall; prohibiting the Divisionof Florida Condominiums, Timeshares, and Mobile Homes of the Depart-ment of Business and Professional Regulation from accepting recallpetitions for filing under certain circumstances; amending s. 718.113,F.S.; providing requirements for a condominium association board relatingto the installation of hurricane shutters, impact glass, code-compliantwindows or doors, and other types of code-compliant hurricane protectionunder certain circumstances; amending s. 718.115, F.S.; conformingprovisions to changes made by the act; amending s. 718.303, F.S.; revisingprovisions relating to imposing remedies against a noncompliant ordelinquent condominium unit owner or member; amending s. 718.403,F.S.; providing requirements for the completion of phase condominiums;creating s. 718.406, F.S.; providing definitions; providing requirements forcondominiums created within condominium parcels; providing for theestablishment of primary condominium and secondary condominiumunits; providing requirements for association declarations; authorizing aprimary condominium association to provide insurance and adopt hurri-cane shutter or hurricane protection specifications under certain condi-tions; providing requirements relating to assessments; providing forresolution of conflicts between primary condominium declarations and


secondary condominium declarations; providing requirements relating tocommon expenses due the primary condominium association; amending s.718.5011, F.S.; revising the restriction on officers and full-time employeesof the ombudsman from engaging in other businesses or professions;amending s. 719.104, F.S.; providing requirements for the maintenance ofthe official records of the association; authorizing records to be madeavailable to unit owners in an electronic format; providing a civil penaltyfor the denial of a request to view records; requiring an association to allowa member or the member’s authorized representative to use certainportable devices to make electronic copies of association records; prohibit-ing the association from charging the member or authorized representa-tive for using the portable device; authorizing a cooperative association toprint and distribute a member directory under certain conditions;specifying additional records that are not accessible to unit owners;amending s. 719.1055, F.S.; revising provisions relating to the amendmentof cooperative documents; providing legislative findings and a finding ofcompelling state interest; providing criteria for consent or joinder to anamendment; requiring notice regarding proposed amendments to mort-gagees; providing criteria for notification; providing for voiding certainamendments; amending s. 719.106, F.S.; revising applicability of certainboard of administration meeting requirements; requiring commencementof challenges to an election within a specified period; specifying certifica-tion or educational requirements for a newly elected or appointedcooperative board director; providing requirements for challenging thefailure of a board to duly notice and hold the required board meeting or tofile the required petition for a recall; providing requirements for recalledboard members to challenge the recall; prohibiting the division fromaccepting recall petitions for filing under certain circumstances; providingeducation requirements for board members; amending s. 719.303, F.S.;revising provisions relating to imposing remedies against a noncompliantor delinquent cooperative unit owner or member; amending s. 719.501,F.S.; authorizing the division to provide training and educationalprograms for cooperative association board members and unit owners;amending s. 720.303, F.S.; requiring an association to allow a member orthe member’s representative to use certain portable devices to makeelectronic copies of association records; prohibiting the association fromcharging the member or representative for using the portable device;authorizing a homeowners’ association to print and distribute a memberdirectory under certain conditions; revising requirements for the prepara-tion of an association’s annual financial statement; revising the types ofrecords that are not accessible to homeowners’ association members andparcel owners; providing requirements for challenging the failure of aboard to duly notice and hold the required board meeting or to file therequired petition for a recall; providing requirements for recalled boardmembers to challenge the recall; prohibiting the division from acceptingrecall petitions for filing under certain circumstances; amending s.720.305, F.S.; revising provisions relating to imposing remedies againsta noncompliant or delinquent homeowners’ association member and parcelowner; amending s. 720.306, F.S.; revising provisions relating to the



amendment of homeowners’ association declarations; providing legislativefindings and a finding of compelling state interest; providing criteria forconsent or joinder to an amendment; requiring notice to mortgageesregarding proposed amendments; providing criteria for notification;providing for voiding certain amendments; revising provisions relatingto right to speak at a homeowners’ association meeting; requiringcommencement of challenges to an election within a specified period;providing an effective date.

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


399.02 General requirements.—

(9) Updates to the Safety Code for Existing Elevators and Escalators,ASME A17.1 and A17.3, which require Phase II Firefighters’ Service onelevators may not be enforced until July 1, 2015, or until the elevator isreplaced or requires major modification, whichever occurs first, on elevatorsin condominiums or multifamily residential buildings, including those thatare part of a continuing care facility licensed under chapter 651, or similarretirement community with apartments, having a certificate of occupancy bythe local building authority that was issued before July 1, 2008. Thisexception does not prevent an elevator owner from requesting a variancefrom the applicable codes before or after July 1, 2015. This subsection doesnot prohibit the division from granting variances pursuant to s. 120.542 andsubsection (8). The division shall adopt rules to administer this subsection.

Section 2. Subsection (8), paragraphs (g) and (j) of subsection (11),paragraph (c) of subsection (12), and paragraphs (a) and (b) of subsection (13)of section 718.111, Florida Statutes, are amended to read:

718.111 The association.—

(8) PURCHASE OF LEASES.—The association has the power topurchase any land or recreation lease, subject to the same manner ofapproval as in s. 718.114 for the acquisition of leaseholds upon the approvalof such voting interest as is required by the declaration. If the declarationmakes no provision for acquisition of the land or recreation lease, the voterequired shall be that required to amend the declaration to permit theacquisition.

(11) INSURANCE.—In order to protect the safety, health, and welfare ofthe people of the State of Florida and to ensure consistency in the provision ofinsurance coverage to condominiums and their unit owners, this subsectionapplies to every residential condominium in the state, regardless of the dateof its declaration of condominium. It is the intent of the Legislature toencourage lower or stable insurance premiums for associations described inthis subsection.



(g) A condominium unit owner’s policy must conform to the requirementsof s. 627.714.

1. All reconstruction work after a property loss must be undertaken bythe association except as otherwise authorized in this section. A unit ownermay undertake reconstruction work on portions of the unit with the priorwritten consent of the board of administration. However, such work may beconditioned upon the approval of the repair methods, the qualifications of theproposed contractor, or the contract that is used for that purpose. A unitowner must obtain all required governmental permits and approvals beforecommencing reconstruction.

2. Unit owners are responsible for the cost of reconstruction of anyportions of the condominium property for which the unit owner is required tocarry property insurance,or for which the unit owner is responsible undersubsection (j), andthe cost of any such reconstruction work undertaken by theassociation is chargeable to the unit owner and enforceable as an assessmentandmay be collected in the manner provided for the collection of assessmentspursuant to s. 718.116.

3. A multicondominium association may elect, by a majority vote of thecollective members of the condominiums operated by the association, tooperate the condominiums as a single condominium for purposes ofinsurance matters, including, but not limited to, the purchase of the propertyinsurance required by this section and the apportionment of deductibles anddamages in excess of coverage. The election to aggregate the treatment ofinsurance premiums, deductibles, and excess damages constitutes anamendment to the declaration of all condominiums operated by theassociation, and the costs of insurance must be stated in the associationbudget. The amendments must be recorded as required by s. 718.110.

(j) Any portion of the condominium property that must be insured by theassociation against property loss pursuant to paragraph (f) which is damagedby an insurable event shall be reconstructed, repaired, or replaced asnecessary by the association as a common expense. All property insurancedeductibles, uninsured losses, and other damages in excess of propertyinsurance coverage under the property insurance policies maintained by theassociation are a common expense of the condominium, except that:

1. A unit owner is responsible for the costs of repair or replacement of anyportion of the condominium property not paid by insurance proceeds if suchdamage is caused by intentional conduct, negligence, or failure to complywith the terms of the declaration or the rules of the association by a unitowner, the members of his or her family, unit occupants, tenants, guests, orinvitees, without compromise of the subrogation rights of the insurer.

2. The provisions of subparagraph 1. regarding the financial responsi-bility of a unit owner for the costs of repairing or replacing other portions ofthe condominium property also apply to the costs of repair or replacement ofpersonal property of other unit owners or the association, as well as other



property, whether real or personal, which the unit owners are required toinsure.

3. To the extent the cost of repair or reconstruction for which the unitowner is responsible under this paragraph is reimbursed to the associationby insurance proceeds, and the association has collected the cost of suchrepair or reconstruction from the unit owner, the association shall reimbursethe unit owner without the waiver of any rights of subrogation.

4. The association is not obligated to pay for reconstruction or repairs ofproperty losses as a common expense if the property losses were known orshould have been known to a unit owner and were not reported to theassociation until after the insurance claim of the association for that propertywas settled or resolved with finality, or denied because it was untimely filed.

(12) OFFICIAL RECORDS.—

(c) The official records of the association are open to inspection by anyassociation member or the authorized representative of such member at allreasonable times. The right to inspect the records includes the right to makeor obtain copies, at the reasonable expense, if any, of the member. Theassociation may adopt reasonable rules regarding the frequency, time,location, notice, and manner of record inspections and copying. The failure ofan association to provide the records within 10 working days after receipt of awritten request creates a rebuttable presumption that the associationwillfully failed to comply with this paragraph. A unit owner who is deniedaccess to official records is entitled to the actual damages or minimumdamages for the association’s willful failure to comply. Minimum damagesare $50 per calendar day for up to 10 days, beginning on the 11th working dayafter receipt of the written request. The failure to permit inspection entitlesany person prevailing in an enforcement action to recover reasonableattorney attorney’s fees from the person in control of the records who,directly or indirectly, knowingly denied access to the records. Any person whoknowingly or intentionally defaces or destroys accounting records that arerequired by this chapter to be maintained during the period for which suchrecords are required to be maintained, or who knowingly or intentionallyfails to create or maintain accounting records that are required to be createdor maintained, with the intent of causing harm to the association or one ormore of its members, is personally subject to a civil penalty pursuant to s.718.501(1)(d). The association shall maintain an adequate number of copiesof the declaration, articles of incorporation, bylaws, and rules, and allamendments to each of the foregoing, as well as the question and answersheet as described in s. 718.504 and year-end financial information requiredunder this section, on the condominium property to ensure their availabilityto unit owners and prospective purchasers, and may charge its actual costsfor preparing and furnishing these documents to those requesting thedocuments. An association shall allow a member or his or her authorizedrepresentative to use a portable device, including a smartphone, tablet,portable scanner, or any other technology capable of scanning or takingphotographs, to make an electronic copy of the official records in lieu of the



association’s providing the member or his or her authorized representativewith a copy of such records. The association may not charge a member or hisor her authorized representative for the use of a portable device. Notwith-standing this paragraph, the following records are not accessible to unitowners:

1. Any record protected by the lawyer-client privilege as described in s.90.502 and any record protected by the work-product privilege, including arecord prepared by an association attorney or prepared at the attorney’sexpress direction, which reflects a mental impression, conclusion, litigationstrategy, or legal theory of the attorney or the association, and which wasprepared exclusively for civil or criminal litigation or for adversarialadministrative proceedings, or which was prepared in anticipation of suchlitigation or proceedings until the conclusion of the litigation or proceedings.

2. Information obtained by an association in connection with theapproval of the lease, sale, or other transfer of a unit.

3. Personnel records of association or management company employees,including, but not limited to, disciplinary, payroll, health, and insurancerecords. For purposes of this subparagraph, the term “personnel records”does not include written employment agreements with an associationemployee or management company, or budgetary or financial records thatindicate the compensation paid to an association employee.

4. Medical records of unit owners.

5. Social security numbers, driver’s license numbers, credit card num-bers, e-mail addresses, telephone numbers, facsimile numbers, emergencycontact information, addresses of a unit owner other than as provided tofulfill the association’s notice requirements, and other personal identifyinginformation of any person, excluding the person’s name, unit designation,mailing address, property address, and any address, e-mail address, orfacsimile number provided to the association to fulfill the association’s noticerequirements. Notwithstanding the restrictions in this subparagraph, anassociation may print and distribute to parcel owners a directory containingthe name, parcel address, and telephone number of each parcel owner.However, an owner may exclude his or her telephone number from thedirectory by so requesting in writing to the association consent in writing tothe disclosure of protected information described in this subparagraph. Theassociation is not liable for the inadvertent disclosure of information that isprotected under this subparagraph if the information is included in anofficial record of the association and is voluntarily provided by an owner andnot requested by the association.

6. Electronic security measures that are used by the association tosafeguard data, including passwords.

7. The software and operating system used by the association whichallow the manipulation of data, even if the owner owns a copy of the same



software used by the association. The data is part of the official records of theassociation.

(13) FINANCIAL REPORTING.—Within 90 days after the end of thefiscal year, or annually on a date provided in the bylaws, the association shallprepare and complete, or contract for the preparation and completion of, afinancial report for the preceding fiscal year. Within 21 days after the finalfinancial report is completed by the association or received from the thirdparty, but not later than 120 days after the end of the fiscal year or other dateas provided in the bylaws, the association shall mail to each unit owner at theaddress last furnished to the association by the unit owner, or hand deliver toeach unit owner, a copy of the financial report or a notice that a copy of thefinancial report will be mailed or hand delivered to the unit owner, withoutcharge, upon receipt of a written request from the unit owner. The divisionshall adopt rules setting forth uniform accounting principles and standardsto be used by all associations and addressing the financial reportingrequirements for multicondominium associations. The rules must include,but not be limited to, standards for presenting a summary of associationreserves, including a good faith estimate disclosing the annual amount ofreserve funds that would be necessary for the association to fully fundreserves for each reserve item based on the straight-line accounting method.This disclosure is not applicable to reserves funded via the pooling method.In adopting such rules, the division shall consider the number of membersand annual revenues of an association. Financial reports shall be prepared asfollows:

(a) An association that meets the criteria of this paragraph shall preparea complete set of financial statements in accordance with generally acceptedaccounting principles. The financial statements must be based upon theassociation’s total annual revenues, as follows:

1. An association with total annual revenues of $150,000 $100,000 ormore, but less than $300,000 $200,000, shall prepare compiled financialstatements.

2. An association with total annual revenues of at least $300,000$200,000, but less than $500,000 $400,000, shall prepare reviewed financialstatements.

3. An association with total annual revenues of $500,000 $400,000 ormore shall prepare audited financial statements.

(b)1. An association with total annual revenues of less than $150,000$100,000 shall prepare a report of cash receipts and expenditures.

2. An association that operates fewer than 50 75 units, regardless of theassociation’s annual revenues, shall prepare a report of cash receipts andexpenditures in lieu of financial statements required by paragraph (a).



3. A report of cash receipts and disbursements must disclose the amountof receipts by accounts and receipt classifications and the amount of expensesby accounts and expense classifications, including, but not limited to, thefollowing, as applicable: costs for security, professional andmanagement feesand expenses, taxes, costs for recreation facilities, expenses for refusecollection and utility services, expenses for lawn care, costs for buildingmaintenance and repair, insurance costs, administration and salary ex-penses, and reserves accumulated and expended for capital expenditures,deferred maintenance, and any other category for which the associationmaintains reserves.

Section 3. Paragraphs (d) and (j) of subsection (2) of section 718.112,Florida Statutes, are amended to read:

718.112 Bylaws.—

(2) REQUIRED PROVISIONS.—The bylaws shall provide for the follow-ing and, if they do not do so, shall be deemed to include the following:

(d) Unit owner meetings.—

1. An annual meeting of the unit owners shall be held at the locationprovided in the association bylaws and, if the bylaws are silent as to thelocation, the meeting shall be held within 45 miles of the condominiumproperty. However, such distance requirement does not apply to anassociation governing a timeshare condominium.

2. Unless the bylaws provide otherwise, a vacancy on the board caused bythe expiration of a director’s term shall be filled by electing a new boardmember, and the election must be by secret ballot. An election is not requiredif the number of vacancies equals or exceeds the number of candidates. Forpurposes of this paragraph, the term “candidate” means an eligible personwho has timely submitted the written notice, as described in sub-subpar-agraph 4.a., of his or her intention to become a candidate. Except in atimeshare condominium, or if the staggered term of a board member does notexpire until a later annual meeting, or if all members’ terms would otherwiseexpire but there are no candidates, the terms of all board members expire atthe annual meeting, and such members may stand for reelection unlessprohibited by the bylaws. If the bylaws or articles of incorporation permitstaggered terms of no more than 2 years and upon approval of a majority ofthe total voting interests, the association board members may serve 2-yearstaggered terms. If the number of board members whose terms expire at theannual meeting equals or exceeds the number of candidates, the candidatesbecome members of the board effective upon the adjournment of the annualmeeting. Unless the bylaws provide otherwise, any remaining vacanciesshall be filled by the affirmative vote of the majority of the directors makingup the newly constituted board even if the directors constitute less than aquorum or there is only one director. In a condominium association of morethan 10 units or in a condominium association that does not includetimeshare units or timeshare interests, coowners of a unit may not serve



as members of the board of directors at the same time unless they own morethan one unit or unless there are not enough eligible candidates to fill thevacancies on the board at the time of the vacancy. Any unit owner desiring tobe a candidate for board membership must comply with sub-subparagraph4.a. andmust be eligible to be a candidate to serve on the board of directors atthe time of the deadline for submitting a notice of intent to run in order tohave his or her name listed as a proper candidate on the ballot or to serve onthe board. A person who has been suspended or removed by the divisionunder this chapter, or who is delinquent in the payment of any monetaryobligation due to the association fee, fine, or special or regular assessment asprovided in paragraph (n), is not eligible to be a candidate for boardmembership and may not be listed on the ballot. A person who has beenconvicted of any felony in this state or in a United States District orTerritorial Court, or who has been convicted of any offense in anotherjurisdiction which would be considered a felony if committed in this state, isnot eligible for board membership unless such felon’s civil rights have beenrestored for at least 5 years as of the date such person seeks election to theboard. The validity of an action by the board is not affected if it is laterdetermined that a board member is ineligible for board membership due tohaving been convicted of a felony.

3. The bylaws must provide the method of calling meetings of unitowners, including annual meetings. Written notice must include an agenda,must be mailed, hand delivered, or electronically transmitted to each unitowner at least 14 days before the annual meeting, and must be posted in aconspicuous place on the condominium property at least 14 continuous daysbefore the annual meeting. Upon notice to the unit owners, the board shall,by duly adopted rule, designate a specific location on the condominiumproperty or association property where all notices of unit owner meetingsshall be posted. This requirement does not apply if there is no condominiumproperty or association property for posting notices. In lieu of, or in additionto, the physical posting of meeting notices, the association may, by reason-able rule, adopt a procedure for conspicuously posting and repeatedlybroadcasting the notice and the agenda on a closed-circuit cable televisionsystem serving the condominium association. However, if broadcast notice isused in lieu of a notice posted physically on the condominium property, thenotice and agendamust be broadcast at least four times every broadcast hourof each day that a posted notice is otherwise required under this section. Ifbroadcast notice is provided, the notice and agenda must be broadcast in amanner and for a sufficient continuous length of time so as to allow anaverage reader to observe the notice and read and comprehend the entirecontent of the notice and the agenda. Unless a unit owner waives in writingthe right to receive notice of the annual meeting, such notice must be handdelivered, mailed, or electronically transmitted to each unit owner. Notice formeetings and notice for all other purposes must be mailed to each unit ownerat the address last furnished to the association by the unit owner, or handdelivered to each unit owner. However, if a unit is owned by more than oneperson, the association must provide notice to the address that the developeridentifies for that purpose and thereafter as one or more of the owners of the



unit advise the association in writing, or if no address is given or the ownersof the unit do not agree, to the address provided on the deed of record. Anofficer of the association, or the manager or other person providing notice ofthe association meeting, must provide an affidavit or United States PostalService certificate of mailing, to be included in the official records of theassociation affirming that the notice was mailed or hand delivered inaccordance with this provision.

4. The members of the board shall be elected by written ballot or votingmachine. Proxies may not be used in electing the board in general elections orelections to fill vacancies caused by recall, resignation, or otherwise, unlessotherwise provided in this chapter. This subparagraph does not apply to anassociation governing a timeshare condominium.

a. At least 60 days before a scheduled election, the association shall mail,deliver, or electronically transmit, by separate association mailing orincluded in another association mailing, delivery, or transmission, includingregularly published newsletters, to each unit owner entitled to a vote, a firstnotice of the date of the election. Any unit owner or other eligible persondesiring to be a candidate for the board must give written notice of his or herintent to be a candidate to the association at least 40 days before a scheduledelection. Together with the written notice and agenda as set forth insubparagraph 3., the association shall mail, deliver, or electronicallytransmit a second notice of the election to all unit owners entitled to vote,together with a ballot that lists all candidates. Upon request of a candidate,an information sheet, no larger than 81/2 inches by 11 inches, which must befurnished by the candidate at least 35 days before the election, must beincluded with the mailing, delivery, or transmission of the ballot, with thecosts of mailing, delivery, or electronic transmission and copying to be borneby the association. The association is not liable for the contents of theinformation sheets prepared by the candidates. In order to reduce costs, theassociation may print or duplicate the information sheets on both sides of thepaper. The division shall by rule establish voting procedures consistent withthis sub-subparagraph, including rules establishing procedures for givingnotice by electronic transmission and rules providing for the secrecy ofballots. Elections shall be decided by a plurality of ballots cast. There is noquorum requirement; however, at least 20 percent of the eligible voters mustcast a ballot in order to have a valid election. A unit owner may not permitany other person to vote his or her ballot, and any ballots improperly cast areinvalid. A unit owner who violates this provision may be fined by theassociation in accordance with s. 718.303. A unit owner who needs assistancein casting the ballot for the reasons stated in s. 101.051 may obtain suchassistance. The regular election must occur on the date of the annualmeeting. Notwithstanding this sub-subparagraph, an election is not requiredunless more candidates file notices of intent to run or are nominated thanboard vacancies exist.

b. Within 90 days after being elected or appointed to the board, eachnewly elected or appointed director shall certify in writing to the secretary ofthe association that he or she has read the association’s declaration of



condominium, articles of incorporation, bylaws, and current written policies;that he or she will work to uphold such documents and policies to the best ofhis or her ability; and that he or she will faithfully discharge his or herfiduciary responsibility to the association’s members. In lieu of this writtencertification, within 90 days after being elected or appointed to the board, thenewly elected or appointed director may submit a certificate of havingsatisfactorily completed the educational curriculum administered by adivision-approved condominium education provider within 1 year before or90 days after the date of election or appointment. The written certification oreducational certificate is valid and does not have to be resubmitted as long asthe director serves on the board without interruption. A director who fails totimely file the written certification or educational certificate is suspendedfrom service on the board until he or she complies with this sub-subparagraph. The board may temporarily fill the vacancy during the periodof suspension. The secretary shall cause the association to retain a director’swritten certification or educational certificate for inspection by the membersfor 5 years after a director’s election or the duration of the director’suninterrupted tenure, whichever is longer. Failure to have such writtencertification or educational certificate on file does not affect the validity ofany board action.

c. Any challenge to the election process must be commenced within 60days after the election results are announced.

5. Any approval by unit owners called for by this chapter or the applicabledeclaration or bylaws, including, but not limited to, the approval require-ment in s. 718.111(8), must be made at a duly noticed meeting of unit ownersand is subject to all requirements of this chapter or the applicablecondominium documents relating to unit owner decisionmaking, exceptthat unit owners may take action by written agreement, without meetings,on matters for which action by written agreement without meetings isexpressly allowed by the applicable bylaws or declaration or any law thatprovides for such action.

6. Unit owners may waive notice of specific meetings if allowed by theapplicable bylaws or declaration or any law. If authorized by the bylaws,notice of meetings of the board of administration, unit owner meetings,except unit owner meetings called to recall board members under paragraph(j), and committee meetings may be given by electronic transmission to unitowners who consent to receive notice by electronic transmission.

7. Unit owners have the right to participate in meetings of unit ownerswith reference to all designated agenda items. However, the association mayadopt reasonable rules governing the frequency, duration, and manner ofunit owner participation.

8. A unit owner may tape record or videotape a meeting of the unitowners subject to reasonable rules adopted by the division.



9. Unless otherwise provided in the bylaws, any vacancy occurring on theboard before the expiration of a term may be filled by the affirmative vote ofthe majority of the remaining directors, even if the remaining directorsconstitute less than a quorum, or by the sole remaining director. In thealternative, a board may hold an election to fill the vacancy, in which case theelection procedures must conform to sub-subparagraph 4.a. unless theassociation governs 10 units or fewer and has opted out of the statutoryelection process, in which case the bylaws of the association control. Unlessotherwise provided in the bylaws, a board member appointed or electedunder this section shall fill the vacancy for the unexpired term of the seatbeing filled. Filling vacancies created by recall is governed by paragraph (j)and rules adopted by the division.

10. This chapter does not limit the use of general or limited proxies,require the use of general or limited proxies, or require the use of a writtenballot or voting machine for any agenda item or election at any meeting of atimeshare condominium association.

Notwithstanding subparagraph (b)2. and sub-subparagraph 4.a., an associa-tion of 10 or fewer units may, by affirmative vote of a majority of the totalvoting interests, provide for different voting and election procedures in itsbylaws, which may be by a proxy specifically delineating the different votingand election procedures. The different voting and election procedures mayprovide for elections to be conducted by limited or general proxy.

(j) Recall of board members.—Subject to the provisions of s. 718.301, anymember of the board of administration may be recalled and removed fromoffice with or without cause by the vote or agreement in writing by a majorityof all the voting interests. A special meeting of the unit owners to recall amember or members of the board of administration may be called by 10percent of the voting interests giving notice of the meeting as required for ameeting of unit owners, and the notice shall state the purpose of the meeting.Electronic transmission may not be used as a method of giving notice of ameeting called in whole or in part for this purpose.

1. If the recall is approved by a majority of all voting interests by a vote ata meeting, the recall will be effective as provided in this paragraph herein.The board shall duly notice and hold a board meeting within 5 full businessdays after of the adjournment of the unit owner meeting to recall one or moreboard members. At the meeting, the board shall either certify the recall, inwhich case such member or members shall be recalled effective immediatelyand shall turn over to the board within 5 full business days any and allrecords and property of the association in their possession, or shall proceed asset forth in subparagraph 3.

2. If the proposed recall is by an agreement in writing by a majority of allvoting interests, the agreement in writing or a copy thereof shall be served onthe association by certified mail or by personal service in the mannerauthorized by chapter 48 and the Florida Rules of Civil Procedure. The boardof administration shall duly notice and hold a meeting of the board within 5



full business days after receipt of the agreement in writing. At the meeting,the board shall either certify the written agreement to recall a member ormembers of the board, in which case such member or members shall berecalled effective immediately and shall turn over to the board within 5 fullbusiness days any and all records and property of the association in theirpossession, or proceed as described in subparagraph 3.

3. If the board determines not to certify the written agreement to recall amember or members of the board, or does not certify the recall by a vote at ameeting, the board shall, within 5 full business days after the meeting, filewith the division a petition for arbitration pursuant to the procedures in s.718.1255. For the purposes of this section, the unit owners who voted at themeeting or who executed the agreement in writing shall constitute one partyunder the petition for arbitration. If the arbitrator certifies the recall as toany member or members of the board, the recall will be effective uponmailing of the final order of arbitration to the association. If the associationfails to comply with the order of the arbitrator, the division may take actionpursuant to s. 718.501. Any member or members so recalled shall deliver tothe board any and all records of the association in their possession within 5full business days after of the effective date of the recall.

4. If the board fails to duly notice and hold a board meeting within 5 fullbusiness days after of service of an agreement in writing or within 5 fullbusiness days after of the adjournment of the unit owner recall meeting, therecall shall be deemed effective and the board members so recalled shallimmediately turn over to the board any and all records and property of theassociation.

5. If the board fails to duly notice and hold the requiredmeeting or fails tofile the required petition, the unit owner representative may file a petitionpursuant to s. 718.1255 challenging the board’s failure to act. The petitionmust be filed within 60 days after the expiration of the applicable 5-full-business-day period. The review of a petition under this subparagraph islimited to the sufficiency of service on the board and the facial validity of thewritten agreement or ballots filed.

6.5. If a vacancy occurs on the board as a result of a recall or removal andless than a majority of the board members are removed, the vacancy may befilled by the affirmative vote of a majority of the remaining directors,notwithstanding any provision to the contrary contained in this subsection. Ifvacancies occur on the board as a result of a recall and a majority or more ofthe board members are removed, the vacancies shall be filled in accordancewith procedural rules to be adopted by the division, which rules need not beconsistent with this subsection. The rules must provide procedures govern-ing the conduct of the recall election as well as the operation of theassociation during the period after a recall but before prior to the recallelection.

7. A board member who has been recalled may file a petition pursuant tos. 718.1255 challenging the validity of the recall. The petition must be filed



within 60 days after the recall is deemed certified. The association and theunit owner representative shall be named as the respondents.

8. The division may not accept for filing a recall petition, whether filedpursuant to subparagraph 1., subparagraph 2., subparagraph 5., orsubparagraph 7. and regardless of whether the recall was certified, whenthere are 60 or fewer days until the scheduled reelection of the boardmembersought to be recalled or when 60 or fewer days have elapsed since the electionof the board member sought to be recalled.


718.113 Maintenance; limitation upon improvement; display of flag;hurricane shutters and protection; display of religious decorations.—

(5) Each board of administration shall adopt hurricane shutter specifica-tions for each building within each condominium operated by the associationwhich shall include color, style, and other factors deemed relevant by theboard. All specifications adopted by the board must comply with theapplicable building code.

(a) The board may, subject to the provisions of s. 718.3026, and theapproval of a majority of voting interests of the condominium, installhurricane shutters, impact glass, or other code-compliant windows ordoors, or other types of code-compliant hurricane protection that complycomplies with or exceed exceeds the applicable building code. However, avote of the owners is not required if the maintenance, repair, andreplacement of hurricane shutters, impact glass, or other code-compliantwindows or doors, or other types of code-compliant hurricane protection arethe responsibility of the association pursuant to the declaration of con-dominium. If hurricane protection or laminated glass or window filmarchitecturally designed to function as hurricane protection that whichcomplies with or exceeds the current applicable building code has beenpreviously installed, the board may not install hurricane shutters, hurricaneprotection, or impact glass, or other code-compliant windows or doors, orother types of code-compliant hurricane protection except upon approval by amajority vote of the voting interests.

(b) The association is responsible for the maintenance, repair, andreplacement of the hurricane shutters, impact glass, code-compliant win-dows or doors, or other types of code-compliant hurricane protectionauthorized by this subsection if such property hurricane shutters or otherhurricane protection is the responsibility of the association pursuant to thedeclaration of condominium. If the hurricane shutters, impact glass, code-compliant windows or doors, or other types of code-compliant hurricaneprotection authorized by this subsection are the responsibility of the unitowners pursuant to the declaration of condominium, the maintenance,repair, and replacement of such items are the responsibility of the unitowner.



(c) The board may operate shutters, impact glass, code-compliantwindows or doors, or other types of code-compliant hurricane protectioninstalled pursuant to this subsection without permission of the unit ownersonly if such operation is necessary to preserve and protect the condominiumproperty and association property. The installation, replacement, operation,repair, and maintenance of such shutters, impact glass, code-compliantwindows or doors, or other types of code-compliant hurricane protection inaccordance with the procedures set forth in this paragraph are not a materialalteration to the common elements or association property within themeaning of this section.

(d) Notwithstanding any other provision in the condominium documents,if approval is required by the documents, a board may not refuse to approvethe installation or replacement of hurricane shutters, impact glass, code-compliant windows or doors, or other types of code-compliant hurricaneprotection by a unit owner conforming to the specifications adopted by theboard.

Section 5. Paragraph (e) of subsection (1) of section 718.115, FloridaStatutes, is amended to read:

718.115 Common expenses and common surplus.—

(1)

(e) The expense of installation, replacement, operation, repair, andmaintenance of hurricane shutters, impact glass, code-compliant windowsor doors, or other types of code-compliant hurricane protection by the boardpursuant to s. 718.113(5) constitutes shall constitute a common expense asdefined herein and shall be collected as provided in this section if theassociation is responsible for the maintenance, repair, and replacement ofthe hurricane shutters, impact glass, code-compliant windows or doors, orother types of code-compliant hurricane protection pursuant to the declara-tion of condominium. However, if the maintenance, repair, and replacementof the hurricane shutters, impact glass, code-compliant windows or doors, orother types of code-compliant hurricane protection are is the responsibility ofthe unit owners pursuant to the declaration of condominium, the cost of theinstallation of the hurricane shutters, impact glass, code-compliant windowsor doors, or other types of code-compliant hurricane protection is shall not bea common expense and, but shall be charged individually to the unit ownersbased on the cost of installation of the hurricane shutters, impact glass, code-compliant windows or doors, or other types of code-compliant hurricaneprotection appurtenant to the unit. Notwithstanding the provisions of s.718.116(9), and regardless of whether or not the declaration requires theassociation or unit owners to maintain, repair, or replace hurricane shutters,impact glass, code-compliant windows or doors, or other types of code-compliant hurricane protection, a unit owner who has previously installedhurricane shutters in accordance with s. 718.113(5) that comply with thecurrent applicable building code shall receive a credit when the shutters areinstalled; a unit owner who has previously installed impact glass or code-



compliant windows or doors that comply with the current applicable buildingcode shall receive a credit when the impact glass or code-compliant windowsor doors are installed; and a unit owner who has installed, other types ofcode-compliant hurricane protection that comply with the current applicablebuilding code shall receive a credit when the same type of other code-compliant hurricane protection is installed, and the or laminated glassarchitecturally designed to function as hurricane protection, which hurricaneshutters or other hurricane protection or laminated glass comply with thecurrent applicable building code, shall receive a credit shall be equal to thepro rata portion of the assessed installation cost assigned to each unit.However, such unit owner remains shall remain responsible for the pro ratashare of expenses for hurricane shutters, impact glass, code-compliantwindows or doors, or other types of code-compliant hurricane protectioninstalled on common elements and association property by the boardpursuant to s. 718.113(5), and remains shall remain responsible for a prorata share of the expense of the replacement, operation, repair, andmaintenance of such shutters, impact glass, code-compliant windows ordoors, or other types of code-compliant hurricane protection.

Section 6. Paragraph (a) of subsection (3) of section 718.303, FloridaStatutes, is amended to read:

718.303 Obligations of owners and occupants; remedies.—

(3) The association may levy reasonable fines for the failure of the ownerof the unit or its occupant, licensee, or invitee to comply with any provision ofthe declaration, the association bylaws, or reasonable rules of the associa-tion. A fine may not become a lien against a unit. A fine may be levied on thebasis of each day of a continuing violation, with a single notice andopportunity for hearing. However, the finemay not exceed $100 per violation,or $1,000 in the aggregate.

(a) An association may suspend, for a reasonable period of time, the rightof a unit owner, or a unit owner’s tenant, guest, or invitee, to use the commonelements, common facilities, or any other association property for failure tocomply with any provision of the declaration, the association bylaws, orreasonable rules of the association. This paragraph does not apply to limitedcommon elements intended to be used only by that unit, common elementsneeded to access the unit, utility services provided to the unit, parkingspaces, or elevators.


718.403 Phase condominiums.—

(1) Notwithstanding the provisions of s. 718.110, a developer maydevelop a condominium in phases, if the original declaration of condominiumsubmitting the initial phase to condominium ownership or an amendment tothe declaration which has been approved by all of the unit owners and unit



mortgagees provides for and describes in detail all anticipated phases; theimpact, if any, which the completion of subsequent phases would have uponthe initial phase; and the time period (which may not exceed 7 years from thedate of recording the declaration of condominium) within which all phasesmust be added to the condominium and comply with the requirements of thissection and at the end of which the right to add additional phases expires.

(a) All phases must be added to the condominium within 7 years after thedate of recording the original declaration of condominium submitting theinitial phase to condominium ownership unless an amendment extending the7-year period is approved by the unit owners.

(b) An amendment to extend the 7-year period requires the approval ofthe owners necessary to amend the declaration of condominium consistentwith s. 718.110(1)(a). An extension of the 7-year period may be submitted forapproval only during the last 3 years of the 7-year period.

(c) An amendment must describe the period within which all phasesmustbe added to the condominium and such period may not exceed 10 years afterthe date of recording the original declaration of condominium submitting theinitial phase to condominium ownership.

(d) Notwithstanding s. 718.110, an amendment extending the 7-yearperiod is not an amendment subject to s. 718.110(4).

Section 8. Section 718.406, Florida Statutes, is created to read:

718.406 Condominiums created within condominium parcels.—

(1) Unless otherwise expressed in the declaration of condominium, if acondominium is created within a condominium parcel, the term:

(a) “Primary condominium” means any condominium that is not asecondary condominium and contains one or more subdivided parcels.

(b) “Primary condominium association”means any entity that operates aprimary condominium.

(c) “Primary condominium declaration” means the instrument or instru-ments by which a primary condominium is created, as they are from time totime amended.

(d) “Secondary condominium” means one or more condominium parcelsthat have been submitted to condominium ownership pursuant to asecondary condominium declaration.

(e) “Secondary condominium association” means any entity responsiblefor the operation of a secondary condominium.



(f) “Secondary condominium declaration” means the instrument orinstruments by which a secondary condominium is created, as they arefrom time to time amended.

(g) “Secondary unit” means a unit that is part of a secondary condomi-nium.

(h) “Subdivided parcel” means a condominium parcel in a primarycondominium that has been submitted to condominium ownership pursuantto a secondary condominium declaration.

(2) Unless otherwise provided in the primary condominium declaration,if a condominium parcel is a subdivided parcel, the secondary condominiumassociation responsible for operating the secondary condominium upon thesubdivided parcel shall act on behalf of all of the unit owners of secondaryunits in the secondary condominium and shall exercise all rights of thesecondary unit owners in the primary condominium association, other thanthe right of possession of the secondary unit. The secondary condominiumassociation shall designate a representative who shall cast the vote of thesubdivided parcel in the primary condominium association and, if no personis designated by the secondary condominium association to cast such vote,the vote shall be cast by the president of the secondary condominiumassociation or the designee of the president.

(3) Unless otherwise provided in the primary condominium declarationas originally recorded, no secondary condominium may be created upon anycondominium parcel in the primary condominium, and no amendment to theprimary condominium declaration may permit secondary condominiums tobe created upon parcels in the primary condominium, unless the recordowners of a majority of the condominium parcels join in the execution of theamendment.

(4) If the primary condominium declaration permits the creation of asecondary condominium and a condominium parcel in the primary con-dominium is being submitted for condominium ownership to create asecondary condominium upon the primary condominium parcel, the approvalof the board of administration of the primary condominium association isrequired in order to create the secondary condominium on the primarycondominium parcel. Unless otherwise provided in the primary condomi-nium declaration, the owners of condominium parcels in the primarycondominium that will not be part of the proposed secondary condominiumand the holders of liens upon such primary condominium parcels shall nothave approval rights regarding the creation of the secondary condominium orthe contents of the secondary condominium declaration being submitted.Only the board of administration of the primary condominium association,the owner of the subdivided parcel, and the holders of liens upon thesubdivided parcel shall have approval rights regarding the creation of thesecondary condominium and the contents of the secondary condominiumdeclaration. In order for the recording of the secondary condominiumdeclaration to be effective to create the secondary condominium, the board



of administration of the primary condominium association, the owner of thesubdivided parcel, and all holders of liens on the subdivided parcel mustexecute the secondary condominium declaration for the purpose of eviden-cing their approval.

(5) An owner of a secondary unit is subject to both the primarycondominium declaration and the secondary condominium declaration.

(6) The primary condominium association may provide insurance re-quired by s. 718.111(11) for common elements and other improvementswithin the secondary condominium if the primary condominium declarationpermits the primary condominium association to provide such insurance forthe benefit of the condominium property included in the subdivided parcel, inlieu of such insurance being provided by the secondary condominiumassociation.

(7) Unless otherwise provided in the primary condominium declaration,the board of administration of the primary condominium association mayadopt hurricane shutter or hurricane protection specifications for eachbuilding within which subdivided parcels are located and govern anysubdivided parcels in the primary condominium.

(8) Any unit owner of, or holder of a first mortgage on, a secondary unitmay register such unit owner’s or mortgagee’s interest in the secondary unitwith the primary condominium association by delivering written notice tothe primary condominium association. Once registered, the primary con-dominium association must provide written notice to such secondary unitowner and his, her, or its first mortgagee at least 30 days before institutingany foreclosure action against the subdivided parcel in which the secondaryunit owner and his, her, or its first mortgagee hold an interest for failure ofthe subdivided parcel owner to pay any assessments or other amounts due tothe primary condominium association. A foreclosure action against asubdivided parcel is not effective without an affidavit indicating that writtennotice of the foreclosure was timely sent to the names and addresses ofsecondary unit owners and first mortgagees registered with the primarycondominium association pursuant to this subsection. The registeredsecondary unit owner or mortgagee has a right to pay the proportionateamount of the delinquent assessment attributable to the secondary unit inwhich the registered unit owner or mortgagee holds an interest. Upon suchpayment, the primary condominium association is obligated to promptlymodify or partially release the record of lien on the primary condominiumassociation so that the lien no longer encumbers such secondary unit.Alternatively, a registered secondary unit owner or mortgagee may pay theamount of all delinquent assessments attributed to the subdivided parceland seek reimbursement for all such amounts paid and all costs incurredfrom the secondary condominium association, including, without limitation,the costs of collection other than the share allocable to the secondary unit onbehalf of which such payment was made.



(9) In the event of a conflict between the primary condominiumdeclaration and the secondary condominium declaration, the primarycondominium declaration controls.

(10) All common expenses due to the primary condominium associationwith respect to a subdivided parcel are a common expense of the secondarycondominium association and shall be collected by the secondary condomi-nium association from its members and paid to the primary condominiumassociation.


718.5011 Ombudsman; appointment; administration.—

(2) The Governor shall appoint the ombudsman. The ombudsman mustbe an attorney admitted to practice before the Florida Supreme Court andshall serve at the pleasure of the Governor. A vacancy in the office shall befilled in the same manner as the original appointment. An officer or full-timeemployee of the ombudsman’s office may not actively engage in any otherbusiness or profession that directly or indirectly relates to or conflicts withhis or her work in the ombudsman’s office; serve as the representative of anypolitical party, executive committee, or other governing body of a politicalparty; serve as an executive, officer, or employee of a political party; receiveremuneration for activities on behalf of any candidate for public office; orengage in soliciting votes or other activities on behalf of a candidate for publicoffice. The ombudsman or any employee of his or her office may not become acandidate for election to public office unless he or she first resigns from his orher office or employment.

Section 10. Paragraphs (b) and (c) of subsection (2) of section 719.104,Florida Statutes, are amended to read:

719.104 Cooperatives; access to units; records; financial reports; assess-ments; purchase of leases.—

(2) OFFICIAL RECORDS.—

(b) The official records of the association must shall be maintained withinthe state for at least 7 years. The records of the association shall be madeavailable to a unit owner within 45 miles of the cooperative property orwithin the county in which the cooperative property is located within 5working days after receipt of written request by the board or its designee.This paragraph may be complied with by having a copy of the official recordsof the association available for inspection or copying on the cooperativeproperty or the association may offer the option of making the recordsavailable to a unit owner electronically via the Internet or by allowing therecords to be viewed in an electronic format on a computer screen and printedupon request. The association is not responsible for the use or misuse of theinformation provided to an association member or his or her authorized



representative pursuant to the compliance requirements of this chapterunless the association has an affirmative duty not to disclose suchinformation pursuant to this chapter.

(c) The official records of the association are shall be open to inspection byany association member or the authorized representative of such member atall reasonable times. Failure to permit inspection of the association recordsas provided herein entitles any person prevailing in an enforcement action torecover reasonable attorney’s fees from the person in control of the recordswho, directly or indirectly, knowingly denies access to the records forinspection. The right to inspect the records includes the right to make orobtain copies, at the reasonable expense, if any, of the association member.The association may adopt reasonable rules regarding the frequency, time,location, notice, and manner of record inspections and copying. The failure ofan association to provide the records within 10 working days after receipt of awritten request creates a rebuttable presumption that the associationwillfully failed to comply with this paragraph. A unit owner who is deniedaccess to official records is entitled to the actual damages or minimumdamages for the association’s willful failure to comply with this paragraph.The minimum damages are shall be $50 per calendar day for up to 10 days,beginning the calculation to begin on the 11th working day after receipt ofthe written request. The failure to permit inspection entitles any personprevailing in an enforcement action to recover reasonable attorney fees fromthe person in control of the records who, directly or indirectly, knowinglydenied access to the records. Any person who knowingly or intentionallydefaces or destroys accounting records that are required by this chapter to bemaintained during the period for which such records are required to bemaintained, or who knowingly or intentionally fails to create or maintainaccounting records that are required to be created or maintained, with theintent of causing harm to the association or one or more of its members, ispersonally subject to a civil penalty pursuant to s. 719.501(1)(d). Theassociation shall maintain an adequate number of copies of the declaration,articles of incorporation, bylaws, and rules, and all amendments to each ofthe foregoing, as well as the question and answer sheet as described providedfor in s. 719.504 and year-end financial information required by thedepartment, on the cooperative property to ensure their availability tounit owners and prospective purchasers, and may charge its actual costs forpreparing and furnishing these documents to those requesting the same. Anassociation shall allow a member or his or her authorized representative touse a portable device, including a smartphone, tablet, portable scanner, orany other technology capable of scanning or taking photographs, to make anelectronic copy of the official records in lieu of the association providing themember or his or her authorized representative with a copy of such records.The association may not charge a member or his or her authorizedrepresentative for the use of a portable device. Notwithstanding theprovisions of this paragraph, the following records shall not be accessibleto unit owners:



1. Any record protected by the lawyer-client privilege as described in s.90.502 and any record protected by the work-product privilege, including anyrecord A record that was prepared by an association attorney or prepared atthe attorney’s express direction which; that reflects a mental impression,conclusion, litigation strategy, or legal theory of the attorney or theassociation, and which; or that was prepared exclusively for civil or criminallitigation or for adversarial administrative proceedings, or which wasprepared in anticipation of such imminent civil or criminal litigation orimminent adversarial administrative proceedings, until the conclusion of thelitigation or adversarial administrative proceedings.

2. Information obtained by an association in connection with theapproval of the lease, sale, or other transfer of a unit.

3. Personnel records of association or management company employees,including, but not limited to, disciplinary, payroll, health, and insurancerecords. For purposes of this subparagraph, the term “personnel records”does not include written employment agreements with an associationemployee or management company, or budgetary or financial records thatindicate the compensation paid to an association employee.

4.3. Medical records of unit owners.

5. Social security numbers, driver license numbers, credit card numbers,e-mail addresses, telephone numbers, facsimile numbers, emergency contactinformation, addresses of a unit owner other than as provided to fulfill theassociation’s notice requirements, and other personal identifying informa-tion of any person, excluding the person’s name, unit designation, mailingaddress, property address, and any address, e-mail address, or facsimilenumber provided to the association to fulfill the association’s noticerequirements. Notwithstanding the restrictions in this subparagraph, anassociation may print and distribute to parcel owners a directory containingthe name, parcel address, and telephone number of each parcel owner.However, an owner may exclude his or her telephone number from thedirectory by so requesting in writing to the association. The association is notliable for the inadvertent disclosure of information that is protected underthis subparagraph if the information is included in an official record of theassociation and is voluntarily provided by an owner and not requested by theassociation.

6. Electronic security measures that are used by the association tosafeguard data, including passwords.

7. The software and operating system used by the association whichallow the manipulation of data, even if the owner owns a copy of the samesoftware used by the association. The data is part of the official records of theassociation.

Section 11. Subsection (7) is added to section 719.1055, Florida Statutes,to read:



719.1055 Amendment of cooperative documents; alteration and acquisi-tion of property.—

(7) The Legislature finds that the procurement of mortgagee consent toamendments that do not affect the rights or interests of mortgagees is anunreasonable and substantial logistical and financial burden on the unitowners and that there is a compelling state interest in enabling the membersof an association to approve amendments to the association’s cooperativedocuments through legal means. Accordingly, and notwithstanding anyprovision of this subsection to the contrary:

(a) As to any mortgage recorded on or after July 1, 2013, any provision inthe association’s cooperative documents that requires the consent or joinderof some or all mortgagees of units or any other portion of the association’scommon areas to amend the association’s cooperative documents or for anyother matter is enforceable only as to amendments to the association’scooperative documents that adversely affect the priority of the mortgagee’slien or the mortgagee’s rights to foreclose its lien or that otherwise materiallyaffect the rights and interests of the mortgagees.

(b) As to mortgages recorded before July 1, 2013, any existing provisionsin the association’s cooperative documents requiring mortgagee consent areenforceable.

(c) In securing consent or joinder, the association is entitled to rely uponthe public records to identify the holders of outstanding mortgages. Theassociation may use the address provided in the original recorded mortgagedocument, unless there is a different address for the holder of the mortgagein a recorded assignment or modification of the mortgage, which recordedassignment or modification must reference the official records book and pageon which the original mortgage was recorded. Once the association hasidentified the recorded mortgages of record, the association shall, in writing,request of each unit owner whose unit is encumbered by a mortgage of recordany information that the owner has in his or her possession regarding thename and address of the person to whom mortgage payments are currentlybeing made. Notice shall be sent to such person if the address provided in theoriginal recorded mortgage document is different from the name and addressof the mortgagee or assignee of the mortgage as shown by the public record.The association is deemed to have complied with this requirement by makingthe written request of the unit owners required under this paragraph. Anynotices required to be sent to the mortgagees under this paragraph shall besent to all available addresses provided to the association.

(d) Any notice to the mortgagees required under paragraph (c) may besent by a method that establishes proof of delivery, and any mortgagee whofails to respond within 60 days after the date of mailing is deemed to haveconsented to the amendment.

(e) For those amendments requiring mortgagee consent on or after July1, 2013, in the event mortgagee consent is provided other than by properly



recorded joinder, such consent shall be evidenced by affidavit of theassociation recorded in the public records of the county in which thedeclaration is recorded.

(f) Any amendment adopted without the required consent of a mortgageeis voidable only by amortgagee whowas entitled to notice and an opportunityto consent. An action to void an amendment is subject to the statute oflimitations beginning 5 years after the date of discovery as to theamendments described in paragraph (a) and 5 years after the date ofrecordation of the certificate of amendment for all other amendments. Thisparagraph applies to all mortgages, regardless of the date of recordation ofthe mortgage.

Section 12. Paragraphs (c), (d), and (f) of subsection (1) of section 719.106,Florida Statutes, are amended to read:

719.106 Bylaws; cooperative ownership.—

(1) MANDATORY PROVISIONS.—The bylaws or other cooperativedocuments shall provide for the following, and if they do not, they shall bedeemed to include the following:

(c) Board of administration meetings.—Meetings of the board of admin-istration at which a quorum of the members is present shall be open to allunit owners. Any unit owner may tape record or videotape meetings of theboard of administration. The right to attend such meetings includes the rightto speak at such meetings with reference to all designated agenda items. Thedivision shall adopt reasonable rules governing the tape recording andvideotaping of the meeting. The association may adopt reasonable writtenrules governing the frequency, duration, and manner of unit ownerstatements. Adequate notice of all meetings shall be posted in a conspicuousplace upon the cooperative property at least 48 continuous hours precedingthe meeting, except in an emergency. Any item not included on the noticemay be taken up on an emergency basis by at least a majority plus one of themembers of the board. Such emergency action shall be noticed and ratified atthe next regular meeting of the board. However, written notice of anymeeting at which nonemergency special assessments, or at which amend-ment to rules regarding unit use, will be considered shall be mailed,delivered, or electronically transmitted to the unit owners and postedconspicuously on the cooperative property not less than 14 days beforeprior to the meeting. Evidence of compliance with this 14-day notice shall bemade by an affidavit executed by the person providing the notice and filedamong the official records of the association. Upon notice to the unit owners,the board shall by duly adopted rule designate a specific location on thecooperative property upon which all notices of board meetings shall beposted. In lieu of or in addition to the physical posting of notice of anymeeting of the board of administration on the cooperative property, theassociation may, by reasonable rule, adopt a procedure for conspicuouslyposting and repeatedly broadcasting the notice and the agenda on a closed-circuit cable television system serving the cooperative association. However,



if broadcast notice is used in lieu of a notice posted physically on thecooperative property, the notice and agenda must be broadcast at least fourtimes every broadcast hour of each day that a posted notice is otherwiserequired under this section. When broadcast notice is provided, the noticeand agenda must be broadcast in a manner and for a sufficient continuouslength of time so as to allow an average reader to observe the notice and readand comprehend the entire content of the notice and the agenda. Notice ofany meeting in which regular assessments against unit owners are to beconsidered for any reason shall specifically contain a statement thatassessments will be considered and the nature of any such assessments.Meetings of a committee to take final action on behalf of the board or to makerecommendations to the board regarding the association budget are subjectto the provisions of this paragraph. Meetings of a committee that does nottake final action on behalf of the board or make recommendations to theboard regarding the association budget are subject to the provisions of thissection, unless those meetings are exempted from this section by the bylawsof the association. Notwithstanding any other law to the contrary, therequirement that board meetings and committee meetings be open to theunit owners does not apply is inapplicable to board or committee meetingsheld for the purpose of discussing personnel matters or meetings between theboard or a committee and the association’s attorney, with respect to proposedor pending litigation, if when the meeting is held for the purpose of seeking orrendering legal advice.

(d) Shareholder meetings.—There shall be an annual meeting of theshareholders. All members of the board of administration shall be elected atthe annual meeting unless the bylaws provide for staggered election terms orfor their election at another meeting. Any unit owner desiring to be acandidate for board membership must comply with subparagraph 1. Thebylaws must provide the method for calling meetings, including annualmeetings. Written notice, which must incorporate an identification of agendaitems, shall be given to each unit owner at least 14 days before the annualmeeting and posted in a conspicuous place on the cooperative property atleast 14 continuous days preceding the annual meeting. Upon notice to theunit owners, the board must by duly adopted rule designate a specificlocation on the cooperative property upon which all notice of unit ownermeetings are posted. In lieu of or in addition to the physical posting of themeeting notice, the association may, by reasonable rule, adopt a procedurefor conspicuously posting and repeatedly broadcasting the notice and theagenda on a closed-circuit cable television system serving the cooperativeassociation. However, if broadcast notice is used in lieu of a posted notice, thenotice and agendamust be broadcast at least four times every broadcast hourof each day that a posted notice is otherwise required under this section. Ifbroadcast notice is provided, the notice and agenda must be broadcast in amanner and for a sufficient continuous length of time to allow an averagereader to observe the notice and read and comprehend the entire content ofthe notice and the agenda. Unless a unit owner waives in writing the right toreceive notice of the annual meeting, the notice of the annual meeting mustbe sent by mail, hand delivered, or electronically transmitted to each unit



owner. An officer of the association must provide an affidavit or UnitedStates Postal Service certificate of mailing, to be included in the officialrecords of the association, affirming that notices of the association meetingwere mailed, hand delivered, or electronically transmitted, in accordancewith this provision, to each unit owner at the address last furnished to theassociation.

1. The board of administration shall be elected by written ballot or votingmachine. A proxy may not be used in electing the board of administration ingeneral elections or elections to fill vacancies caused by recall, resignation, orotherwise unless otherwise provided in this chapter.

a. At least 60 days before a scheduled election, the association shall mail,deliver, or transmit, whether by separate association mailing, delivery, orelectronic transmission or included in another association mailing, delivery,or electronic transmission, including regularly published newsletters, to eachunit owner entitled to vote, a first notice of the date of the election. Any unitowner or other eligible person desiring to be a candidate for the board ofadministration must give written notice to the association at least 40 daysbefore a scheduled election. Together with the written notice and agenda asset forth in this section, the association shall mail, deliver, or electronicallytransmit a second notice of election to all unit owners entitled to vote,together with a ballot that which lists all candidates. Upon request of acandidate, the association shall include an information sheet, no larger than81/2 inches by 11 inches, which must be furnished by the candidate at least 35days before the election, to be included with the mailing, delivery, orelectronic transmission of the ballot, with the costs of mailing, delivery, ortransmission and copying to be borne by the association. The association isnot liable for the contents of the information sheets provided by thecandidates. In order to reduce costs, the association may print or duplicatethe information sheets on both sides of the paper. The division shall by ruleestablish voting procedures consistent with this subparagraph, includingrules establishing procedures for giving notice by electronic transmission andrules providing for the secrecy of ballots. Elections shall be decided by aplurality of those ballots cast. There is no quorum requirement. However, atleast 20 percent of the eligible voters must cast a ballot in order to have avalid election. A unit owner may not permit any other person to vote his orher ballot, and any such ballots improperly cast are invalid. A unit ownerwho needs assistance in casting the ballot for the reasons stated in s. 101.051may obtain assistance in casting the ballot. Any unit owner violating thisprovision may be fined by the association in accordance with s. 719.303. Theregular election must occur on the date of the annual meeting. Thissubparagraph does not apply to timeshare cooperatives. Notwithstandingthis subparagraph, an election and balloting are not required unless morecandidates file a notice of intent to run or are nominated than vacancies existon the board. Any challenge to the election process must be commencedwithin 60 days after the election results are announced.

b. Within 90 days after being elected or appointed to the board, each newdirector shall certify in writing to the secretary of the association that he or



she has read the association’s bylaws, articles of incorporation, proprietarylease, and current written policies; that he or she will work to uphold suchdocuments and policies to the best of his or her ability; and that he or she willfaithfully discharge his or her fiduciary responsibility to the association’smembers. Within 90 days after being elected or appointed to the board, inlieu of this written certification, the newly elected or appointed director maysubmit a certificate of having satisfactorily completed the educationalcurriculum administered by an education provider as approved by thedivision pursuant to the requirements established in chapter 718 within 1year before or 90 days after the date of election or appointment. Theeducational certificate is valid and does not have to be resubmitted as long asthe director serves on the board without interruption. A director who fails totimely file the written certification or educational certificate is suspendedfrom service on the board until he or she complies with this sub-subparagraph. The board may temporarily fill the vacancy during the periodof suspension. The secretary of the association shall cause the association toretain a director’s written certification or educational certificate for inspec-tion by the members for 5 years after a director’s election or the duration ofthe director’s uninterrupted tenure, whichever is longer. Failure to have suchwritten certification or educational certificate on file does not affect thevalidity of any board action.

2. Any approval by unit owners called for by this chapter, or theapplicable cooperative documents, must be made at a duly noticed meetingof unit owners and is subject to this chapter or the applicable cooperativedocuments relating to unit owner decisionmaking, except that unit ownersmay take action by written agreement, without meetings, on matters forwhich action by written agreement without meetings is expressly allowed bythe applicable cooperative documents or law which provides for the unitowner action.

3. Unit owners may waive notice of specific meetings if allowed by theapplicable cooperative documents or law. If authorized by the bylaws, noticeof meetings of the board of administration, shareholder meetings, exceptshareholder meetings called to recall board members under paragraph (f),and committee meetings may be given by electronic transmission to unitowners who consent to receive notice by electronic transmission.

4. Unit owners have the right to participate in meetings of unit ownerswith reference to all designated agenda items. However, the association mayadopt reasonable rules governing the frequency, duration, and manner ofunit owner participation.

5. Any unit owner may tape record or videotape meetings of the unitowners subject to reasonable rules adopted by the division.

6. Unless otherwise provided in the bylaws, a vacancy occurring on theboard before the expiration of a term may be filled by the affirmative vote ofthe majority of the remaining directors, even if the remaining directorsconstitute less than a quorum, or by the sole remaining director. In the



alternative, a board may hold an election to fill the vacancy, in which case theelection procedures must conform to the requirements of subparagraph 1.unless the association has opted out of the statutory election process, inwhich case the bylaws of the association control. Unless otherwise providedin the bylaws, a board member appointed or elected under this subparagraphshall fill the vacancy for the unexpired term of the seat being filled. Fillingvacancies created by recall is governed by paragraph (f) and rules adopted bythe division.

Notwithstanding subparagraphs (b)2. and (d)1., an association may, by theaffirmative vote of a majority of the total voting interests, provide for adifferent voting and election procedure in its bylaws, which vote may be by aproxy specifically delineating the different voting and election procedures.The different voting and election procedures may provide for elections to beconducted by limited or general proxy.

(f) Recall of board members.—Subject to the provisions of s. 719.301, anymember of the board of administration may be recalled and removed fromoffice with or without cause by the vote or agreement in writing by a majorityof all the voting interests. A special meeting of the voting interests to recallany member of the board of administration may be called by 10 percent of theunit owners giving notice of the meeting as required for a meeting of unitowners, and the notice shall state the purpose of the meeting. Electronictransmission may not be used as a method of giving notice of a meeting calledin whole or in part for this purpose.

1. If the recall is approved by a majority of all voting interests by a vote ata meeting, the recall shall be effective as provided in this paragraph herein.The board shall duly notice and hold a board meeting within 5 full businessdays after of the adjournment of the unit owner meeting to recall one or moreboard members. At the meeting, the board shall either certify the recall, inwhich case such member or members shall be recalled effective immediatelyand shall turn over to the board within 5 full business days any and allrecords and property of the association in their possession, or shall proceed asset forth in subparagraph 3.

2. If the proposed recall is by an agreement in writing by a majority of allvoting interests, the agreement in writing or a copy thereof shall be served onthe association by certified mail or by personal service in the mannerauthorized by chapter 48 and the Florida Rules of Civil Procedure. The boardof administration shall duly notice and hold a meeting of the board within 5full business days after receipt of the agreement in writing. At the meeting,the board shall either certify the written agreement to recall members of theboard, in which case such members shall be recalled effective immediatelyand shall turn over to the board, within 5 full business days, any and allrecords and property of the association in their possession, or proceed asdescribed in subparagraph 3.

3. If the board determines not to certify the written agreement to recallmembers of the board, or does not certify the recall by a vote at a meeting, the



board shall, within 5 full business days after the board meeting, file with thedivision a petition for binding arbitration pursuant to the procedures of s.719.1255. For purposes of this paragraph, the unit owners who voted at themeeting or who executed the agreement in writing shall constitute one partyunder the petition for arbitration. If the arbitrator certifies the recall as toany member of the board, the recall shall be effective upon mailing of thefinal order of arbitration to the association. If the association fails to complywith the order of the arbitrator, the division may take action pursuant to s.719.501. Any member so recalled shall deliver to the board any and allrecords and property of the association in the member’s possession within 5full business days after of the effective date of the recall.

4. If the board fails to duly notice and hold a board meeting within 5 fullbusiness days after of service of an agreement in writing or within 5 fullbusiness days after of the adjournment of the unit owner recall meeting, therecall shall be deemed effective and the board members so recalled shallimmediately turn over to the board any and all records and property of theassociation.

5. If the board fails to duly notice and hold the requiredmeeting or fails tofile the required petition, the unit owner representative may file a petitionpursuant to s. 719.1255 challenging the board’s failure to act. The petitionmust be filed within 60 days after the expiration of the applicable 5-full-business-day period. The review of a petition under this subparagraph islimited to the sufficiency of service on the board and the facial validity of thewritten agreement or ballots filed.

6.5. If a vacancy occurs on the board as a result of a recall and less than amajority of the board members are removed, the vacancy may be filled by theaffirmative vote of a majority of the remaining directors, notwithstandingany provision to the contrary contained in this chapter. If vacancies occur onthe board as a result of a recall and a majority or more of the board membersare removed, the vacancies shall be filled in accordance with procedural rulesto be adopted by the division, which rules need not be consistent with thischapter. The rules must provide procedures governing the conduct of therecall election as well as the operation of the association during the periodafter a recall but before prior to the recall election.

7. A board member who has been recalled may file a petition pursuant tos. 719.1255 challenging the validity of the recall. The petition must be filedwithin 60 days after the recall is deemed certified. The association and theunit owner representative shall be named as the respondents.

8. The division may not accept for filing a recall petition, whether filedpursuant to subparagraph 1., subparagraph 2., subparagraph 5., orsubparagraph 7. and regardless of whether the recall was certified, whenthere are 60 or fewer days until the scheduled reelection of the boardmembersought to be recalled or when 60 or fewer days have not elapsed since theelection of the board member sought to be recalled.



Section 13. Paragraph (a) of subsection (3) of section 719.303, FloridaStatutes, is amended to read:

719.303 Obligations of owners.—

(3) The association may levy reasonable fines for failure of the unit owneror the unit’s occupant, licensee, or invitee to comply with any provision of thecooperative documents or reasonable rules of the association. A fine may notbecome a lien against a unit. A fine may be levied on the basis of each day of acontinuing violation, with a single notice and opportunity for hearing.However, the fine may not exceed $100 per violation, or $1,000 in theaggregate.

(a) An association may suspend, for a reasonable period of time, the rightof a unit owner, or a unit owner’s tenant, guest, or invitee, to use the commonelements, common facilities, or any other association property for failure tocomply with any provision of the cooperative documents or reasonable rulesof the association. This paragraph does not apply to limited commonelements intended to be used only by that unit, common elements neededto access the unit, utility services provided to the unit, parking spaces, orelevators.

Section 14. Paragraph (k) of subsection (1) of section 719.501, FloridaStatutes, is amended to read:

719.501 Powers and duties of Division of Florida Condominiums, Time-shares, and Mobile Homes.—

(1) The Division of Florida Condominiums, Timeshares, and MobileHomes of the Department of Business and Professional Regulation, referredto as the “division” in this part, in addition to other powers and dutiesprescribed by chapter 718, has the power to enforce and ensure compliancewith this chapter and adopted rules relating to the development, construc-tion, sale, lease, ownership, operation, and management of residentialcooperative units. In performing its duties, the division shall have thefollowing powers and duties:

(k) The division shall provide training and educational programs forcooperative association board members and unit owners. The training may,in the division’s discretion, include web-based electronic media, and livetraining and seminars in various locations throughout the state. The divisionmay review and approve education and training programs for boardmembers and unit owners offered by providers and shall maintain a currentlist of approved programs and providers and make such list available toboard members and unit owners in a reasonable and cost-effective manner.

Section 15. Subsection (5), paragraphs (a) and (b) of subsection (7), andsubsection (10) of section 720.303, Florida Statutes, are amended to read:

720.303 Association powers and duties; meetings of board; officialrecords; budgets; financial reporting; association funds; recalls.—



(5) INSPECTION AND COPYING OF RECORDS.—The official recordsshall be maintained within the state and must be open to inspection andavailable for photocopying by members or their authorized agents atreasonable times and places within 10 business days after receipt of awritten request for access. This subsection may be complied with by having acopy of the official records available for inspection or copying in thecommunity. If the association has a photocopy machine available wherethe records are maintained, it must provide parcel owners with copies onrequest during the inspection if the entire request is limited to no more than25 pages. An association shall allow a member or his or her authorizedrepresentative to use a portable device, including a smartphone, tablet,portable scanner, or any other technology capable of scanning or takingphotographs, to make an electronic copy of the official records in lieu of theassociation’s providing the member or his or her authorized representativewith a copy of such records. The association may not charge a member or hisor her authorized representative for the use of a portable device.

(a) The failure of an association to provide access to the records within 10business days after receipt of a written request submitted by certified mail,return receipt requested, creates a rebuttable presumption that theassociation willfully failed to comply with this subsection.

(b) A member who is denied access to official records is entitled to theactual damages or minimum damages for the association’s willful failure tocomply with this subsection. The minimum damages are to be $50 percalendar day up to 10 days, the calculation to begin on the 11th business dayafter receipt of the written request.

(c) The association may adopt reasonable written rules governing thefrequency, time, location, notice, records to be inspected, and manner ofinspections, but may not require a parcel owner to demonstrate any properpurpose for the inspection, state any reason for the inspection, or limit aparcel owner’s right to inspect records to less than one 8-hour business dayper month. The association may impose fees to cover the costs of providingcopies of the official records, including, without limitation, the costs ofcopying. The association may charge up to 50 cents per page for copies madeon the association’s photocopier. If the association does not have a photocopymachine available where the records are kept, or if the records requested tobe copied exceed 25 pages in length, the association may have copies made byan outside vendor or association management company personnel and maycharge the actual cost of copying, including any reasonable costs involvingpersonnel fees and charges at an hourly rate for vendor or employee time tocover administrative costs to the vendor or association. The association shallmaintain an adequate number of copies of the recorded governing docu-ments, to ensure their availability to members and prospective members.Notwithstanding this paragraph, the following records are not accessible tomembers or parcel owners:

1. Any record protected by the lawyer-client privilege as described in s.90.502 and any record protected by the work-product privilege, including, but



not limited to, a record prepared by an association attorney or prepared atthe attorney’s express direction which reflects a mental impression, conclu-sion, litigation strategy, or legal theory of the attorney or the association andwhich was prepared exclusively for civil or criminal litigation or foradversarial administrative proceedings or which was prepared in anticipa-tion of such litigation or proceedings until the conclusion of the litigation orproceedings.

2. Information obtained by an association in connection with theapproval of the lease, sale, or other transfer of a parcel.

3. Personnel records of association or management company the associa-tion’s employees, including, but not limited to, disciplinary, payroll, health,and insurance records. For purposes of this subparagraph, the term“personnel records” does not include written employment agreements withan association or management company employee or budgetary or financialrecords that indicate the compensation paid to an association or manage-ment company employee.

4. Medical records of parcel owners or community residents.

5. Social security numbers, driver driver’s license numbers, credit cardnumbers, electronic mailing addresses, telephone numbers, facsimile num-bers, emergency contact information, any addresses for a parcel owner otherthan as provided for association notice requirements, and other personalidentifying information of any person, excluding the person’s name, parceldesignation, mailing address, and property address. Notwithstanding therestrictions in this subparagraph, an association may print and distribute toparcel owners a directory containing the name, parcel address, and telephonenumber of each parcel owner. However, an owner may exclude his or hertelephone number from the directory by so requesting in writing to theassociation consent in writing to the disclosure of protected informationdescribed in this subparagraph. The association is not liable for thedisclosure of information that is protected under this subparagraph if theinformation is included in an official record of the association and isvoluntarily provided by an owner and not requested by the association.

6. Any electronic security measure that is used by the association tosafeguard data, including passwords.

7. The software and operating system used by the association whichallows the manipulation of data, even if the owner owns a copy of the samesoftware used by the association. The data is part of the official records of theassociation.

(d) The association or its authorized agent is not required to provide aprospective purchaser or lienholder with information about the residentialsubdivision or the association other than information or documents requiredby this chapter to be made available or disclosed. The association or itsauthorized agent may charge a reasonable fee to the prospective purchaser or



lienholder or the current parcel owner or member for providing good faithresponses to requests for information by or on behalf of a prospectivepurchaser or lienholder, other than that required by law, if the fee does notexceed $150 plus the reasonable cost of photocopying and any attorneyattorney’s fees incurred by the association in connection with the response.

(7) FINANCIAL REPORTING.—Within 90 days after the end of thefiscal year, or annually on the date provided in the bylaws, the associationshall prepare and complete, or contract with a third party for the preparationand completion of, a financial report for the preceding fiscal year. Within 21days after the final financial report is completed by the association orreceived from the third party, but not later than 120 days after the end of thefiscal year or other date as provided in the bylaws, the association shall,within the time limits set forth in subsection (5), provide each member with acopy of the annual financial report or a written notice that a copy of thefinancial report is available upon request at no charge to the member.Financial reports shall be prepared as follows:

(a) An association that meets the criteria of this paragraph shall prepareor cause to be prepared a complete set of financial statements in accordancewith generally accepted accounting principles as adopted by the Board ofAccountancy. The financial statements shall be based upon the association’stotal annual revenues, as follows:

1. An association with total annual revenues of $150,000 $100,000 ormore, but less than $300,000 $200,000, shall prepare compiled financialstatements.

2. An association with total annual revenues of at least $300,000$200,000, but less than $500,000 $400,000, shall prepare reviewed financialstatements.

3. An association with total annual revenues of $500,000 $400,000 ormore shall prepare audited financial statements.

(b)1. An association with total annual revenues of less than $150,000$100,000 shall prepare a report of cash receipts and expenditures.

2. An association in a community of fewer than 50 parcels, regardless ofthe association’s annual revenues, may prepare a report of cash receipts andexpenditures in lieu of financial statements required by paragraph (a) unlessthe governing documents provide otherwise.

3. A report of cash receipts and disbursement must disclose the amountof receipts by accounts and receipt classifications and the amount of expensesby accounts and expense classifications, including, but not limited to, thefollowing, as applicable: costs for security, professional, and managementfees and expenses; taxes; costs for recreation facilities; expenses for refusecollection and utility services; expenses for lawn care; costs for building



maintenance and repair; insurance costs; administration and salary ex-penses; and reserves if maintained by the association.

(10) RECALL OF DIRECTORS.—

(a)1. Regardless of any provision to the contrary contained in thegoverning documents, subject to the provisions of s. 720.307 regardingtransition of association control, any member of the board of directors may berecalled and removed from office with or without cause by a majority of thetotal voting interests.

2. When the governing documents, including the declaration, articles ofincorporation, or bylaws, provide that only a specific class of members isentitled to elect a board director or directors, only that class of members mayvote to recall those board directors so elected.

(b)1. Board directors may be recalled by an agreement in writing or bywritten ballot without a membership meeting. The agreement in writing orthe written ballots, or a copy thereof, shall be served on the association bycertified mail or by personal service in the manner authorized by chapter 48and the Florida Rules of Civil Procedure.

2. The board shall duly notice and hold a meeting of the board within 5full business days after receipt of the agreement in writing or written ballots.At the meeting, the board shall either certify the written ballots or writtenagreement to recall a director or directors of the board, in which case suchdirector or directors shall be recalled effective immediately and shall turnover to the board within 5 full business days any and all records and propertyof the association in their possession, or proceed as described in paragraph(d).

3. When it is determined by the department pursuant to bindingarbitration proceedings that an initial recall effort was defective, writtenrecall agreements or written ballots used in the first recall effort and notfound to be defective may be reused in one subsequent recall effort. However,in no event is a written agreement or written ballot valid for more than 120days after it has been signed by the member.

4. Any rescission or revocation of a member’s written recall ballot oragreement must be in writing and, in order to be effective, must be deliveredto the association before the association is served with the written recallagreements or ballots.

5. The agreement in writing or ballot shall list at least as many possiblereplacement directors as there are directors subject to the recall, when atleast a majority of the board is sought to be recalled; the person executing therecall instrument may vote for as many replacement candidates as there aredirectors subject to the recall.

(c)1. If the declaration, articles of incorporation, or bylaws specificallyprovide, the members may also recall and remove a board director or



directors by a vote taken at a meeting. If so provided in the governingdocuments, a special meeting of the members to recall a director or directorsof the board of administration may be called by 10 percent of the votinginterests giving notice of the meeting as required for a meeting of members,and the notice shall state the purpose of themeeting. Electronic transmissionmay not be used as amethod of giving notice of ameeting called in whole or inpart for this purpose.

2. The board shall duly notice and hold a board meeting within 5 fullbusiness days after the adjournment of the member meeting to recall one ormore directors. At the meeting, the board shall certify the recall, in whichcase such member or members shall be recalled effective immediately andshall turn over to the board within 5 full business days any and all recordsand property of the association in their possession, or shall proceed as setforth in subparagraph (d).

(d) If the board determines not to certify the written agreement orwritten ballots to recall a director or directors of the board or does not certifythe recall by a vote at a meeting, the board shall, within 5 full business daysafter the meeting, file with the department a petition for binding arbitrationpursuant to the applicable procedures in ss. 718.112(2)(j) and 718.1255 andthe rules adopted thereunder. For the purposes of this section, the memberswho voted at the meeting or who executed the agreement in writing shallconstitute one party under the petition for arbitration. If the arbitratorcertifies the recall as to any director or directors of the board, the recall willbe effective upon mailing of the final order of arbitration to the association.The director or directors so recalled shall deliver to the board any and allrecords of the association in their possession within 5 full business days afterthe effective date of the recall.

(e) If a vacancy occurs on the board as a result of a recall and less than amajority of the board directors are removed, the vacancy may be filled by theaffirmative vote of a majority of the remaining directors, notwithstandingany provision to the contrary contained in this subsection or in theassociation documents. If vacancies occur on the board as a result of a recalland a majority or more of the board directors are removed, the vacanciesshall be filled by members voting in favor of the recall; if removal is at ameeting, any vacancies shall be filled by the members at the meeting. If therecall occurred by agreement in writing or by written ballot, members mayvote for replacement directors in the same instrument in accordance withprocedural rules adopted by the division, which rules need not be consistentwith this subsection.

(f) If the board fails to duly notice and hold a board meeting within 5 fullbusiness days after service of an agreement in writing or within 5 fullbusiness days after the adjournment of the member recall meeting, the recallshall be deemed effective and the board directors so recalled shallimmediately turn over to the board all records and property of theassociation.



(g) If the board fails to duly notice and hold the required meeting or failsto file the required petition, the unit owner representative may file a petitionpursuant to s. 718.1255 challenging the board’s failure to act. The petitionmust be filed within 60 days after the expiration of the applicable 5-full-business-day period. The review of a petition under this paragraph is limitedto the sufficiency of service on the board and the facial validity of the writtenagreement or ballots filed.

(h)(g) If a director who is removed fails to relinquish his or her office orturn over records as required under this section, the circuit court in thecounty where the association maintains its principal office may, upon thepetition of the association, summarily order the director to relinquish his orher office and turn over all association records upon application of theassociation.

(i)(h) The minutes of the board meeting at which the board decideswhether to certify the recall are an official association record. The minutesmust record the date and time of the meeting, the decision of the board, andthe vote count taken on each board member subject to the recall. In addition,when the board decides not to certify the recall, as to each vote rejected, theminutes must identify the parcel number and the specific reason for eachsuch rejection.

(j)(i) When the recall of more than one board director is sought, thewritten agreement, ballot, or vote at a meeting shall provide for a separatevote for each board director sought to be recalled.

(k) A board member who has been recalled may file a petition pursuant toss. 718.112(2)(j) and 718.1255 and the rules adopted challenging the validityof the recall. The petition must be filed within 60 days after the recall isdeemed certified. The association and the unit owner representative shall benamed as respondents.

(l) The division may not accept for filing a recall petition, whether filedpursuant to paragraph (b), paragraph (c), paragraph (g), or paragraph (k) andregardless of whether the recall was certified, when there are 60 or fewerdays until the scheduled reelection of the board member sought to be recalledor when 60 or fewer days have not elapsed since the election of the boardmember sought to be recalled.


720.305 Obligations of members; remedies at law or in equity; levy offines and suspension of use rights.—

(2) The association may levy reasonable fines of up to $100 per violationagainst any member or any member’s tenant, guest, or invitee for the failureof the owner of the parcel or its occupant, licensee, or invitee to comply withany provision of the declaration, the association bylaws, or reasonable rules



of the association. A fine may be levied for each day of a continuing violation,with a single notice and opportunity for hearing, except that the fine may notexceed $1,000 in the aggregate unless otherwise provided in the governingdocuments. A fine of less than $1,000 may not become a lien against a parcel.In any action to recover a fine, the prevailing party is entitled to reasonableattorney attorney’s fees and costs from the nonprevailing party as deter-mined by the court.

(a) An association may suspend, for a reasonable period of time, the rightof a member, or a member’s tenant, guest, or invitee, to use common areasand facilities for the failure of the owner of the parcel or its occupant,licensee, or invitee to comply with any provision of the declaration, theassociation bylaws, or reasonable rules of the association. This paragraphdoes not apply to that portion of common areas used to provide access orutility services to the parcel. A suspension may not impair the right of anowner or tenant of a parcel to have vehicular and pedestrian ingress to andegress from the parcel, including, but not limited to, the right to park.

(b) A fine or suspension may not be imposed without at least 14 days’notice to the person sought to be fined or suspended and an opportunity for ahearing before a committee of at least three members appointed by the boardwho are not officers, directors, or employees of the association, or the spouse,parent, child, brother, or sister of an officer, director, or employee. If thecommittee, by majority vote, does not approve a proposed fine or suspension,it may not be imposed. If the association imposes a fine or suspension, theassociation must provide written notice of such fine or suspension by mail orhand delivery to the parcel owner and, if applicable, to any tenant, licensee,or invitee of the parcel owner.

Section 17. Paragraph (d) is added to subsection (1) of section 720.306,Florida Statutes, and subsection (6) and paragraph (a) of subsection (9) ofthat section are amended, to read:

720.306 Meetings of members; voting and election procedures; amend-ments.—

(1) QUORUM; AMENDMENTS.—

(d) The Legislature finds that the procurement of mortgagee consent toamendments that do not affect the rights or interests of mortgagees is anunreasonable and substantial logistical and financial burden on the parcelowners and that there is a compelling state interest in enabling the membersof an association to approve amendments to the association’s governingdocuments through legal means. Accordingly, and notwithstanding anyprovision of this paragraph to the contrary:

1. As to any mortgage recorded on or after July 1, 2013, any provision inthe association’s governing documents that requires the consent or joinder ofsome or all mortgagees of parcels or any other portion of the association’scommon areas to amend the association’s governing documents or for any



other matter is enforceable only as to amendments to the association’sgoverning documents that adversely affect the priority of the mortgagee’slien or the mortgagee’s rights to foreclose its lien or that otherwise materiallyaffect the rights and interests of the mortgagees.

2. As to mortgages recorded before July 1, 2013, any existing provisionsin the association’s governing documents requiring mortgagee consent areenforceable.

3. In securing consent or joinder, the association is entitled to rely uponthe public records to identify the holders of outstanding mortgages. Theassociation may use the address provided in the original recorded mortgagedocument, unless there is a different address for the holder of the mortgagein a recorded assignment or modification of the mortgage, which recordedassignment or modification must reference the official records book and pageon which the original mortgage was recorded. Once the association hasidentified the recorded mortgages of record, the association shall, in writing,request of each parcel owner whose parcel is encumbered by a mortgage ofrecord any information that the owner has in his or her possession regardingthe name and address of the person to whom mortgage payments arecurrently being made. Notice shall be sent to such person if the addressprovided in the original recorded mortgage document is different from thename and address of the mortgagee or assignee of the mortgage as shown bythe public record. The association is deemed to have complied with thisrequirement by making the written request of the parcel owners requiredunder this subparagraph. Any notices required to be sent to the mortgageesunder this subparagraph shall be sent to all available addresses provided tothe association.

4. Any notice to the mortgagees required under subparagraph 3. may besent by a method that establishes proof of delivery, and any mortgagee whofails to respond within 60 days after the date of mailing is deemed to haveconsented to the amendment.

5. For those amendments requiring mortgagee consent on or after July 1,2013, in the event mortgagee consent is provided other than by properlyrecorded joinder, such consent shall be evidenced by affidavit of theassociation recorded in the public records of the county in which thedeclaration is recorded.

6. Any amendment adopted without the required consent of a mortgageeis voidable only by amortgagee whowas entitled to notice and an opportunityto consent. An action to void an amendment is subject to the statute oflimitations beginning 5 years after the date of discovery as to theamendments described in subparagraph 1. and 5 years after the date ofrecordation of the certificate of amendment for all other amendments. Thissubparagraph applies to all mortgages, regardless of the date of recordationof the mortgage.



(6) RIGHT TO SPEAK.—Members and parcel owners have the right toattend all membership meetings and to speak at any meeting with referenceto all items opened for discussion or included on the agenda. Notwithstand-ing any provision to the contrary in the governing documents or any rulesadopted by the board or by the membership, a member and a parcel ownerhave the right to speak for at least 3 minutes on any item, provided that themember or parcel owner submits a written request to speak prior to themeeting. The association may adopt written reasonable rules governing thefrequency, duration, and other manner of member and parcel ownerstatements, which rules must be consistent with this subsection.

(9)(a) ELECTIONS AND BOARD VACANCIES.—

(a) Elections of directors must be conducted in accordance with theprocedures set forth in the governing documents of the association. Allmembers of the association are eligible to serve on the board of directors, anda member may nominate himself or herself as a candidate for the board at ameeting where the election is to be held or, if the election process allowsvoting by absentee ballot, in advance of the balloting. Except as otherwiseprovided in the governing documents, boards of directors must be elected by aplurality of the votes cast by eligible voters. Any challenge to the electionprocess must be commenced within 60 days after the election results areannounced.

Section 18. This act shall take effect July 1, 2013.

Approved by the Governor June 14, 2013.

Filed in Office Secretary of State June 14, 2013.



THE FLORIDA SENATE

2013 SUMMARY OF LEGISLATION PASSED

Committee on Regulated Industries


CS/CS/CS/HB 73 Page: 1

CS/CS/CS/HB 73 — Residential Properties by Judiciary Committee; Business and Professional Regulation Subcommittee; Civil Justice

Subcommittee; and Rep. Moraitis and others (CS/CS/CS/SB 436 by Appropriations Committee;

Judiciary Committee; Regulated Industries Committee; and Senators Altman and Sachs)

The bill revises several provisions relating to the governance of condominium, cooperative, and

homeowners’ associations.

The bill prohibits the enforcement of the Phase II Firefighter’s Service requirements for existing

elevators until an elevator is replaced or the elevator requires major modification. This

requirement permits the operation and exclusive control of an elevator by firefighters for

evacuating the physically disabled in occupied buildings and for moving firefighters and

equipment during an emergency.

Regarding condominium, cooperative, and homeowners’ associations, the bill:

Gives association members the right to use their smartphone, tablet, portable scanner, or

other technology capable of scanning or taking pictures in lieu of the association

providing copies to the member, and without charge to the member;

Permits associations to print and distribute a directory with the members’ name, parcel

address, and telephone number. However, the association must permit members to

exclude their telephone number from the directory by submitting a written request;

Requires that any challenge to the election process be commenced within 60 days after

the election results are announced;

Prohibits election recalls when there are less than 60 days before the next election; and

Provides that the suspension of an owner’s rights does not apply to limited common

elements that are intended to be used only by that owner, common elements needed to

access the unit or home, utility services to the unit or home, parking spaces, or elevators,

and that suspended interests are not needed for establishing a quorum, conducting an

election, or obtaining member approval.

Regarding condominiums, the bill:

Decreases the number of votes required for the purchase of a lease;

Defines the unit owner’s responsibility for the cost of reconstruction of condominium

property;

Clarifies that broadcast notice by closed-circuit television may be made in lieu of a notice

posted physically on the condominium property;

Clarifies that the board must maintain a copy of a board member’s post election

certification for at least 5 years or the duration of the board member’s tenure, whichever

is longer;

Revises the hurricane protection provisions to include impact glass, code-compliant

windows and doors, and other types of code-compliant hurricane protection and clarifies

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2013 Summary of Legislation Passed Committee on Regulated Industries


CS/CS/CS/HB 73 Page: 2

the conditions for a unit owner to receive credit for the prior installation of hurricane

protection;

Extends from 7 years to 10 years the period for completion of all phases of a phase

condominium;

Provides for the creation of a secondary condominium within a primary condominium;

Permits officers or full-time employees of the condominium ombudsman’s office to

engage in another profession or any other business that is not directly or indirectly

related, or conflicts with, his or her work in the ombudsman’s office;

Provides that 50, rather than 75, or fewer units shall prepare a cash report in lieu of a

financial statement.

Regarding cooperative associations, the bill provides that meetings of the board held for the

purpose of discussing personnel matters are not subject to the open meetings requirement. It also

expands the types of official records that are not accessible to members of the association,

including records containing specified personal identifying information. The bill also requires

newly elected or appointed members of the cooperative board to provide a post-election

certification that they have read the governing documents of the association, or alternatively, to

submit a certification showing the satisfactory completion of the educational curriculum within 1

year before the election or 90 days after the election or appointment.

Regarding homeowners’ associations, the bill includes the personnel records of the management

company among the records that are not accessible to the association’s members. It also deletes

the condition that the parcel owner must submit a written request to speak prior to the meeting in

order to exercise his or her right to speak at a meeting.

Regarding cooperative and homeowners’ associations, the bill provides a process for amending

association documents without the approval of all mortgagees.

Regarding condominium and homeowners’ associations, the bill also increases the total annual

revenue amounts used to determine the type of financial report that association is required to

prepare.

If approved by the Governor, these provisions take effect July 1, 2013.

Vote: Senate 38-0; House 117-0

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Recent Changes to Florida's Condominium Act - The Fund · PDF fileLegal documents for others...

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Transcript of Recent Changes to Florida's Condominium Act - The Fund · PDF fileLegal documents for others...