CO-OPERATIVES BILL 2008

CO-OPERATIVES

Section 43. Subsection (17) of section 719.103, Florida

Statutes, is amended to read:

719.103 Definitions.--As used in this chapter:

(17) "Division" means the Division of Florida Land Sales,

Condominiums, Homeowners' Associations, and Mobile Homes of the

Department of Business and Professional Regulation.

Section 44. Subsection (7) is added to section 719.1055,

Florida Statutes, to read:

719.1055 Amendment of cooperative documents; alteration

and acquisition of property.--

(7) Any amendment restricting cooperative owners' rights

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

consent to the amendment and unit owners who purchase their

units after the effective date of that amendment.

Section 45. Section 719.1255, Florida Statutes, is amended

to read:

719.1255 Alternative resolution of disputes.--The Division

of Florida Land Sales, Condominiums, Homeowners' Associations,

and Mobile Homes of the Department of Business and Professional

Regulation shall provide for alternative dispute resolution in

accordance with s. 718.1255.

Section 46. Section 719.501, Florida Statutes, is amended

to read:

719.501 Powers and duties of Division of Florida Land

Sales, Condominiums, Homeowners' Associations, and Mobile

Homes.--

(1) The Division of Florida Land Sales, Condominiums,

Homeowners' Associations, and Mobile Homes of the Department of

Business and Professional Regulation, referred to as the

"division" in this part, in addition to other powers and duties

prescribed by chapter 498, has the power to enforce and ensure

compliance with the provisions of this chapter and rules

promulgated pursuant hereto relating to the development,

construction, sale, lease, ownership, operation, and management

of residential cooperative units. In performing its duties, the

division shall have the following powers and duties:

(a) The division may make necessary public or private

investigations within or outside this state to determine whether

any person has violated this chapter or any rule or order

hereunder, to aid in the enforcement of this chapter, or to aid

in the adoption of rules or forms hereunder.

(b) The division may require or permit any person to file

a statement in writing, under oath or otherwise, as the division

determines, as to the facts and circumstances concerning a

matter to be investigated.

chapter, the division director or any officer or employee

designated by the division director may administer oaths or

affirmations, subpoena witnesses and compel their attendance,

take evidence, and require the production of any matter which is

relevant to the investigation, including the existence,

description, nature, custody, condition, and location of any

books, documents, or other tangible things and the identity and

location of persons having knowledge of relevant facts or any

other matter reasonably calculated to lead to the discovery of

material evidence. Upon failure by a person to obey a subpoena

or to answer questions propounded by the investigating officer

and upon reasonable notice to all persons affected thereby, the

division may apply to the circuit court for an order compelling

compliance.

(d) Notwithstanding any remedies available to unit owners

and associations, if the division has reasonable cause to

believe that a violation of any provision of this chapter or

rule promulgated pursuant hereto has occurred, the division may

institute enforcement proceedings in its own name against a

developer, association, officer, or member of the board, or its

assignees or agents, as follows:

1. The division may permit a person whose conduct or

actions may be under investigation to waive formal proceedings

and enter into a consent proceeding whereby orders, rules, or

letters of censure or warning, whether formal or informal, may

be entered against the person.

2. The division may issue an order requiring the

developer, association, officer, or member of the board, or its

assignees or agents, to cease and desist from the unlawful

practice and take such affirmative action as in the judgment of

the division will carry out the purposes of this chapter. Such

affirmative action may include, but is not limited to, an order

requiring a developer to pay moneys determined to be owed to a

condominium association.

3. The division may bring an action in circuit court on

behalf of a class of unit owners, lessees, or purchasers for

declaratory relief, injunctive relief, or restitution.

4. The division may impose a civil penalty against a

developer or association, or its assignees or agents, for any

violation of this chapter or a rule promulgated pursuant hereto.

The division may impose a civil penalty individually against any

officer or board member who willfully and knowingly violates a

provision of this chapter, a rule adopted pursuant to this

chapter, or a final order of the division. The term "willfully

and knowingly" means that the division informed the officer or

board member that his or her action or intended action violates

this chapter, a rule adopted under this chapter, or a final

order of the division, and that the officer or board member

refused to comply with the requirements of this chapter, a rule

adopted under this chapter, or a final order of the division.

The division, prior to initiating formal agency action under

chapter 120, shall afford the officer or board member an

opportunity to voluntarily comply with this chapter, a rule

adopted under this chapter, or a final order of the division. An

officer or board member who complies within 10 days is not

subject to a civil penalty. A penalty may be imposed on the

basis of each day of continuing violation, but in no event shall

the penalty for any offense exceed $5,000. By January 1, 1998,

the division shall adopt, by rule, penalty guidelines applicable

to possible violations or to categories of violations of this

chapter or rules adopted by the division. The guidelines must

specify a meaningful range of civil penalties for each such

violation of the statute and rules and must be based upon the

harm caused by the violation, the repetition of the violation,

and upon such other factors deemed relevant by the division. For

example, the division may consider whether the violations were

committed by a developer or owner-controlled association, the

size of the association, and other factors. The guidelines must

designate the possible mitigating or aggravating circumstances

that justify a departure from the range of penalties provided by

the rules. It is the legislative intent that minor violations be

distinguished from those which endanger the health, safety, or

welfare of the cooperative residents or other persons and that

such guidelines provide reasonable and meaningful notice to the

public of likely penalties that may be imposed for proscribed

conduct. This subsection does not limit the ability of the

division to informally dispose of administrative actions or

complaints by stipulation, agreed settlement, or consent order.

All amounts collected shall be deposited with the Chief

Financial Officer to the credit of the Division of Florida Land

Sales, Condominiums, Homeowners' Associations, and Mobile Homes

Trust Fund. If a developer fails to pay the civil penalty, the

division shall thereupon issue an order directing that such

developer cease and desist from further operation until such

time as the civil penalty is paid or may pursue enforcement of

the penalty in a court of competent jurisdiction. If an

association fails to pay the civil penalty, the division shall

thereupon pursue enforcement in a court of competent

jurisdiction, and the order imposing the civil penalty or the

cease and desist order shall not become effective until 20 days

after the date of such order. Any action commenced by the

division shall be brought in the county in which the division

has its executive offices or in the county where the violation

occurred.

(e) The division is authorized to prepare and disseminate

a prospectus and other information to assist prospective owners,

purchasers, lessees, and developers of residential cooperatives

in assessing the rights, privileges, and duties pertaining

thereto.

(f) The division has authority to adopt rules pursuant to

ss. 120.536(1) and 120.54 to implement and enforce the

provisions of this chapter.

(g) The division shall establish procedures for providing

notice to an association when the division is considering the

issuance of a declaratory statement with respect to the

cooperative documents governing such cooperative community.

(h) The division shall furnish each association which pays

the fees required by paragraph (2)(a) a copy of this act,

subsequent changes to this act on an annual basis, an amended

version of this act as it becomes available from the Secretary

of State's office on a biennial basis, and the rules promulgated

pursuant thereto on an annual basis.

(i) The division shall annually provide each association

with a summary of declaratory statements and formal legal

opinions relating to the operations of cooperatives which were

rendered by the division during the previous year.

(j) The division shall adopt uniform accounting

principles, policies, and standards to be used by all

associations in the preparation and presentation of all

financial statements required by this chapter. The principles,

policies, and standards shall take into consideration the size

of the association and the total revenue collected by the

association.

(k) The division shall provide training programs for

cooperative association board members and unit owners.

(l) The division shall maintain a toll-free telephone

number accessible to cooperative unit owners.

(m) When a complaint is made to the division, the division

shall conduct its inquiry with reasonable dispatch and with due

regard to the interests of the affected parties. Within 30 days

after receipt of a complaint, the division shall acknowledge the

complaint in writing and notify the complainant whether the

complaint is within the jurisdiction of the division and whether

additional information is needed by the division from the

complainant. The division shall conduct its investigation and

shall, within 90 days after receipt of the original complaint or

timely requested additional information, take action upon the

complaint. However, the failure to complete the investigation

within 90 days does not prevent the division from continuing the

investigation, accepting or considering evidence obtained or

received after 90 days, or taking administrative action if

reasonable cause exists to believe that a violation of this

chapter or a rule of the division has occurred. If an

investigation is not completed within the time limits

established in this paragraph, the division shall, on a monthly

basis, notify the complainant in writing of the status of the

investigation. When reporting its action to the complainant, the

division shall inform the complainant of any right to a hearing

pursuant to ss. 120.569 and 120.57.

(n) The division shall develop a program to certify both

volunteer and paid mediators to provide mediation of cooperative

disputes. The division shall provide, upon request, a list of

such mediators to any association, unit owner, or other

participant in arbitration proceedings under s. 718.1255

requesting a copy of the list. The division shall include on the

list of voluntary mediators only persons who have received at

least 20 hours of training in mediation techniques or have

mediated at least 20 disputes. In order to become initially

certified by the division, paid mediators must be certified by

the Supreme Court to mediate court cases in either county or

circuit courts. However, the division may adopt, by rule,

additional factors for the certification of paid mediators,

which factors must be related to experience, education, or

background. Any person initially certified as a paid mediator by

the division must, in order to continue to be certified, comply

with the factors or requirements imposed by rules adopted by the

division.

(2)(a) Each cooperative association shall pay to the

division, on or before January 1 of each year, an annual fee in

the amount of $4 for each residential unit in cooperatives

operated by the association. If the fee is not paid by March 1,

then the association shall be assessed a penalty of 10 percent

of the amount due, and the association shall not have the

standing to maintain or defend any action in the courts of this

state until the amount due is paid.

(b) All fees shall be deposited in the Division of Florida

Land Sales, Condominiums, Homeowners' Associations, and Mobile

Homes Trust Fund as provided by law.

Section 47. Paragraph (a) of subsection (2) of section

719.502, Florida Statutes, is amended to read:

719.502 Filing prior to sale or lease.--

(2)(a) Prior to filing as required by subsection (1), and

prior to acquiring an ownership, leasehold, or contractual

interest in the land upon which the cooperative is to be

developed, a developer shall not offer a contract for purchase

or lease of a unit for more than 5 years. However, the developer

may accept deposits for reservations upon the approval of a

fully executed escrow agreement and reservation agreement form

properly filed with the Division of Florida Land Sales,

Condominiums, Homeowners' Associations, and Mobile Homes. Each

filing of a proposed reservation program shall be accompanied by

a filing fee of $250. Reservations shall not be taken on a

proposed cooperative unless the developer has an ownership,

leasehold, or contractual interest in the land upon which the

cooperative is to be developed. The division shall notify the

developer within 20 days of receipt of the reservation filing of

any deficiencies contained therein. Such notification shall not

preclude the determination of reservation filing deficiencies at

a later date, nor shall it relieve the developer of any

responsibility under the law. The escrow agreement and the

reservation agreement form shall include a statement of the

right of the prospective purchaser to an immediate unqualified

refund of the reservation deposit moneys upon written request to

the escrow agent by the prospective purchaser or the developer.

Section 48. Section 719.504, Florida Statutes, is amended

to read:

719.504 Prospectus or offering circular.--Every developer

of a residential cooperative which contains more than 20

residential units, or which is part of a group of residential

cooperatives which will be served by property to be used in

common by unit owners of more than 20 residential units, shall

prepare a prospectus or offering circular and file it with the

Division of Florida Land Sales, Condominiums, Homeowners'

Associations, and Mobile Homes prior to entering into an

enforceable contract of purchase and sale of any unit or lease

of a unit for more than 5 years and shall furnish a copy of the

prospectus or offering circular to each buyer. In addition to

the prospectus or offering circular, each buyer shall be

furnished a separate page entitled "Frequently Asked Questions

and Answers," which must be in accordance with a format approved

by the division. This page must, in readable language: inform

prospective purchasers regarding their voting rights and unit

use restrictions, including restrictions on the leasing of a

unit; indicate whether and in what amount the unit owners or the

association is obligated to pay rent or land use fees for

recreational or other commonly used facilities; contain a

statement identifying that amount of assessment which, pursuant

to the budget, would be levied upon each unit type, exclusive of

any special assessments, and which identifies the basis upon

which assessments are levied, whether monthly, quarterly, or

otherwise; state and identify any court cases in which the

association is currently a party of record in which the

association may face liability in excess of $100,000; and state

whether membership in a recreational facilities association is

mandatory and, if so, identify the fees currently charged per

unit type. The division shall by rule require such other

disclosure as in its judgment will assist prospective

purchasers. The prospectus or offering circular may include more

than one cooperative, although not all such units are being

offered for sale as of the date of the prospectus or offering

circular. The prospectus or offering circular must contain the

following information:

(1) The front cover or the first page must contain only:

(a) The name of the cooperative.

(b) The following statements in conspicuous type:

1. THIS PROSPECTUS (OFFERING CIRCULAR) CONTAINS IMPORTANT

MATTERS TO BE CONSIDERED IN ACQUIRING A COOPERATIVE UNIT.

2. THE STATEMENTS CONTAINED HEREIN ARE ONLY SUMMARY IN

NATURE. A PROSPECTIVE PURCHASER SHOULD REFER TO ALL REFERENCES,

ALL EXHIBITS HERETO, THE CONTRACT DOCUMENTS, AND SALES

MATERIALS.

3. ORAL REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY

STATING THE REPRESENTATIONS OF THE DEVELOPER. REFER TO THIS

PROSPECTUS (OFFERING CIRCULAR) AND ITS EXHIBITS FOR CORRECT

REPRESENTATIONS.

(2) Summary: The next page must contain all statements

required to be in conspicuous type in the prospectus or offering

circular.

(3) A separate index of the contents and exhibits of the

prospectus.

(4) Beginning on the first page of the text (not including

the summary and index), a description of the cooperative,

including, but not limited to, the following information:

(a) Its name and location.

(b) A description of the cooperative property, including,

without limitation:

1. The number of buildings, the number of units in each

building, the number of bathrooms and bedrooms in each unit, and

the total number of units, if the cooperative is not a phase

cooperative; or, if the cooperative is a phase cooperative, the

maximum number of buildings that may be contained within the

cooperative, the minimum and maximum number of units in each

building, the minimum and maximum number of bathrooms and

bedrooms that may be contained in each unit, and the maximum

number of units that may be contained within the cooperative.

2. The page in the cooperative documents where a copy of

the survey and plot plan of the cooperative is located.

3. The estimated latest date of completion of

constructing, finishing, and equipping. In lieu of a date, a

statement that the estimated date of completion of the

cooperative is in the purchase agreement and a reference to the

article or paragraph containing that information.

in common with the cooperative. If the maximum number of units

will vary, a description of the basis for variation and the

minimum amount of dollars per unit to be spent for additional

recreational facilities or enlargement of such facilities. If

the addition or enlargement of facilities will result in a

material increase of a unit owner's maintenance expense or

rental expense, if any, the maximum increase and limitations

thereon shall be stated.

(5)(a) A statement in conspicuous type describing whether

the cooperative is created and being sold as fee simple

interests or as leasehold interests. If the cooperative is

created or being sold on a leasehold, the location of the lease

in the disclosure materials shall be stated.

(b) If timeshare estates are or may be created with

respect to any unit in the cooperative, a statement in

conspicuous type stating that timeshare estates are created and

being sold in such specified units in the cooperative.

(6) A description of the recreational and other common

areas that will be used only by unit owners of the cooperative,

including, but not limited to, the following:

(a) Each room and its intended purposes, location,

approximate floor area, and capacity in numbers of people.

(b) Each swimming pool, as to its general location,

approximate size and depths, approximate deck size and capacity,

and whether heated.

facility, its approximate location, approximate size, and

approximate capacity.

(d) A general description of the items of personal

property and the approximate number of each item of personal

property that the developer is committing to furnish for each

room or other facility or, in the alternative, a representation

as to the minimum amount of expenditure that will be made to

purchase the personal property for the facility.

(e) The estimated date when each room or other facility

will be available for use by the unit owners.

(f)1. An identification of each room or other facility to

be used by unit owners that will not be owned by the unit owners

or the association;

2. A reference to the location in the disclosure materials

of the lease or other agreements providing for the use of those

facilities; and

3. A description of the terms of the lease or other

agreements, including the length of the term; the rent payable,

directly or indirectly, by each unit owner, and the total rent

payable to the lessor, stated in monthly and annual amounts for

the entire term of the lease; and a description of any option to

purchase the property leased under any such lease, including the

time the option may be exercised, the purchase price or how it

is to be determined, the manner of payment, and whether the

option may be exercised for a unit owner's share or only as to

the entire leased property.

(g) A statement as to whether the developer may provide

additional facilities not described above, their general

locations and types, improvements or changes that may be made,

the approximate dollar amount to be expended, and the maximum

additional common expense or cost to the individual unit owners

that may be charged during the first annual period of operation

of the modified or added facilities.

Descriptions as to locations, areas, capacities, numbers,

volumes, or sizes may be stated as approximations or minimums.

(7) A description of the recreational and other facilities

that will be used in common with other cooperatives, community

associations, or planned developments which require the payment

of the maintenance and expenses of such facilities, either

directly or indirectly, by the unit owners. The description

shall include, but not be limited to, the following:

(a) Each building and facility committed to be built.

(b) Facilities not committed to be built except under

certain conditions, and a statement of those conditions or

contingencies.

will be committed to be built upon the happening of one of the

conditions in paragraph (b), a statement of whether it will be

owned by the unit owners having the use thereof or by an

association or other entity which will be controlled by them, or

others, and the location in the exhibits of the lease or other

document providing for use of those facilities.

(d) The year in which each facility will be available for

use by the unit owners or, in the alternative, the maximum

number of unit owners in the project at the time each of all of

the facilities is committed to be completed.

(e) A general description of the items of personal

property, and the approximate number of each item of personal

property, that the developer is committing to furnish for each

room or other facility or, in the alternative, a representation

as to the minimum amount of expenditure that will be made to

purchase the personal property for the facility.

(f) If there are leases, a description thereof, including

the length of the term, the rent payable, and a description of

any option to purchase.

Descriptions shall include location, areas, capacities, numbers,

volumes, or sizes and may be stated as approximations or

minimums.

(8) Recreation lease or associated club membership:

(a) If any recreational facilities or other common areas

offered by the developer and available to, or to be used by,

unit owners are to be leased or have club membership associated,

the following statement in conspicuous type shall be included:

THERE IS A RECREATIONAL FACILITIES LEASE ASSOCIATED WITH THIS

COOPERATIVE; or, THERE IS A CLUB MEMBERSHIP ASSOCIATED WITH THIS

COOPERATIVE. There shall be a reference to the location in the

disclosure materials where the recreation lease or club

membership is described in detail.

(b) If it is mandatory that unit owners pay a fee, rent,

dues, or other charges under a recreational facilities lease or

club membership for the use of facilities, there shall be in

conspicuous type the applicable statement:

1. MEMBERSHIP IN THE RECREATIONAL FACILITIES CLUB IS

MANDATORY FOR UNIT OWNERS; or

2. UNIT OWNERS ARE REQUIRED, AS A CONDITION OF OWNERSHIP,

TO BE LESSEES UNDER THE RECREATIONAL FACILITIES LEASE; or

3. UNIT OWNERS ARE REQUIRED TO PAY THEIR SHARE OF THE

COSTS AND EXPENSES OF MAINTENANCE, MANAGEMENT, UPKEEP,

REPLACEMENT, RENT, AND FEES UNDER THE RECREATIONAL FACILITIES

LEASE (OR THE OTHER INSTRUMENTS PROVIDING THE FACILITIES); or

4. A similar statement of the nature of the organization

or manner in which the use rights are created, and that unit

owners are required to pay.

Immediately following the applicable statement, the location in

the disclosure materials where the development is described in

detail shall be stated.

unit owners and other persons having use rights in the

facilities, reserves, or is entitled to receive, any rent, fee,

or other payment for the use of the facilities, then there shall

be the following statement in conspicuous type: THE UNIT OWNERS

OR THE ASSOCIATION(S) MUST PAY RENT OR LAND USE FEES FOR

RECREATIONAL OR OTHER COMMON AREAS. Immediately following this

statement, the location in the disclosure materials where the

rent or land use fees are described in detail shall be stated.

(d) If, in any recreation format, whether leasehold, club,

or other, any person other than the association has the right to

a lien on the units to secure the payment of assessments, rent,

or other exactions, there shall appear a statement in

conspicuous type in substantially the following form:

1. THERE IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO

SECURE THE PAYMENT OF RENT AND OTHER EXACTIONS UNDER THE

RECREATION LEASE. THE UNIT OWNER'S FAILURE TO MAKE THESE

PAYMENTS MAY RESULT IN FORECLOSURE OF THE LIEN; or

2. THERE IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO

SECURE THE PAYMENT OF ASSESSMENTS OR OTHER EXACTIONS COMING DUE

FOR THE USE, MAINTENANCE, UPKEEP, OR REPAIR OF THE RECREATIONAL

OR COMMONLY USED AREAS. THE UNIT OWNER'S FAILURE TO MAKE THESE

PAYMENTS MAY RESULT IN FORECLOSURE OF THE LIEN.

Immediately following the applicable statement, the location in

the disclosure materials where the lien or lien right is

described in detail shall be stated.

(9) If the developer or any other person has the right to

increase or add to the recreational facilities at any time after

the establishment of the cooperative whose unit owners have use

rights therein, without the consent of the unit owners or

associations being required, there shall appear a statement in

conspicuous type in substantially the following form:

RECREATIONAL FACILITIES MAY BE EXPANDED OR ADDED WITHOUT CONSENT

OF UNIT OWNERS OR THE ASSOCIATION(S). Immediately following this

statement, the location in the disclosure materials where such

reserved rights are described shall be stated.

(10) A statement of whether the developer's plan includes

a program of leasing units rather than selling them, or leasing

units and selling them subject to such leases. If so, there

shall be a description of the plan, including the number and

identification of the units and the provisions and term of the

proposed leases, and a statement in boldfaced type that: THE

UNITS MAY BE TRANSFERRED SUBJECT TO A LEASE.

(11) The arrangements for management of the association

and maintenance and operation of the cooperative property and of

other property that will serve the unit owners of the

cooperative property, and a description of the management

contract and all other contracts for these purposes having a

term in excess of 1 year, including the following:

(a) The names of contracting parties.

(b) The term of the contract.

(d) The compensation, stated on a monthly and annual

basis, and provisions for increases in the compensation.

(e) A reference to the volumes and pages of the

cooperative documents and of the exhibits containing copies of

such contracts.

Copies of all described contracts shall be attached as exhibits.

If there is a contract for the management of the cooperative

property, then a statement in conspicuous type in substantially

the following form shall appear, identifying the proposed or

existing contract manager: THERE IS (IS TO BE) A CONTRACT FOR

THE MANAGEMENT OF THE COOPERATIVE PROPERTY WITH (NAME OF THE

CONTRACT MANAGER). Immediately following this statement, the

location in the disclosure materials of the contract for

management of the cooperative property shall be stated.

(12) If the developer or any other person or persons other

than the unit owners has the right to retain control of the

board of administration of the association for a period of time

which can exceed 1 year after the closing of the sale of a

majority of the units in that cooperative to persons other than

successors or alternate developers, then a statement in

conspicuous type in substantially the following form shall be

included: THE DEVELOPER (OR OTHER PERSON) HAS THE RIGHT TO

RETAIN CONTROL OF THE ASSOCIATION AFTER A MAJORITY OF THE UNITS

HAVE BEEN SOLD. Immediately following this statement, the

location in the disclosure materials where this right to control

is described in detail shall be stated.

(13) If there are any restrictions upon the sale,

transfer, conveyance, or leasing of a unit, then a statement in