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Section
2. Subsections (2), (4), (7), (8), (9), and (10)
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of section 720.301,
Florida Statutes, are amended, and
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subsection (14) is added
to that section, to read:
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720.301 Definitions.--As
used in this chapter, the term:
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(2) "Common
area" means all real property within a
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community which is owned
or leased by an association or
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dedicated
for use or maintenance by the association or its
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members, including,
regardless of whether title has been
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conveyed to the
association:
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(a) Real
property the use of which is dedicated to the
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association or its
members by a recorded plat; or
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(b) Real
property committed by a declaration of covenants
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to be leased or conveyed
to the association.
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(4) "Declaration
of covenants," or "declaration," means a
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recorded written
instrument in the nature of covenants running
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with the land,
according to the recorded plat, which subjects
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the land comprising the
community to the jurisdiction and
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control of an association
or associations in which the owners of
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the parcels,
or their association representatives, must be
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members. Upon
the execution of the sale of the first lot, a
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declaration
may not be amended without the vote of approval of
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two-thirds
majority of the owners of residential parcels that
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have
been purchased, with a tie vote resulting in a negative
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vote.
Exceptions shall be amendments identifying additional
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phases
of the community as they are constructed. These
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amendments
may not contain any other changes to the existing
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declaration.
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(7) "Division"
means the Division of Florida Land Sales,
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Condominiums, Homeowners'
Associations, and Mobile Homes in the
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Department of Business
and Professional Regulation.
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(8) "Governing
documents" means:
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(a) Each
set of The recorded
declaration of covenants for
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a community, and all duly
adopted and recorded amendments,
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supplements, and recorded
exhibits thereto; and
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(b) The
articles of incorporation and bylaws of the
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homeowners' association,
and any duly adopted amendments
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thereto.
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When
different sets of covenants exist for each recorded plat,
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those
covenants shall only apply to the plat for which they are
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recorded
and specified. The different sets of covenants may not
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be
commingled.
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(9) "Homeowners'
association" or "association" means a
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Florida corporation,
as authorized by chapter 720
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responsible for the administration
operation of a community or a
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mobile home subdivision
in compliance with applicable federal,
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state,
and local laws and the governing documents of the
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association.
In addition, a homeowners' association means a
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Florida
corporation in which the voting membership is made up of
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parcel owners or their
agents, or a combination thereof, and in
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which membership is a
mandatory condition of parcel ownership,
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and which is authorized
to impose assessments that, if unpaid,
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may become a lien on the
parcel. Any homeowners' association or
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other
named association that administers a residential community
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where
membership is mandatory shall be required to comply with
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this
chapter, except if exempted. The term "homeowners'
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association" does
not include a community development district
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or other similar special
taxing district created pursuant to
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statute.
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(10) "Member"
means a member of an association, and may
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include, but is not
limited to, a parcel owner or an association
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representing
parcel owners or a combination thereof, and
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includes any person or
entity obligated by the governing
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documents to pay an
assessment or amenity fee.
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(14) "Homeowners'
Association Advisory Council" means a
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group
of persons appointed to recommend changes in laws that
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affect
the administration of mandatory homeowners' associations.
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Section
3. Subsections (1) and (2) of section 720.302,
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Florida Statutes, are
amended to read:
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720.302 Purposes,
scope, and application.--
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(1) The
purposes of this chapter are to give statutory
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recognition to
corporations not for profit that administer
or
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operate residential
communities in this state, to provide
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regulations
procedures for operating
homeowners' associations,
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and to protect the rights
of association members without unduly
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impairing the ability of
such associations to perform their
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functions as
authorized by federal, state, and local laws and
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the
governing documents of the association.
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(2) Having
provided certain powers and authority to
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homeowners'
associations and deed restrictions created by
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developers
of mandated properties in residential communities,
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the Legislature
recognizes that it is necessary to provide
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regulatory
oversight to ensure compliance with federal, state,
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and
local laws. It is the intent of the Legislature to protect
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the
rights of parcel owners by ensuring that the powers and
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authority
granted to homeowners' associations and deed
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restrictions
created by developers of mandated properties in
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residential
communities conform to a system of checks and
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balances
to prevent abuses of governmental authority. The
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Department
of Business and Professional Regulation shall create
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a
Division of Mandated Properties. No later than July 1, 2009,
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the
division shall establish a process for collecting an annual
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fee
which shall not exceed $4 for each association member in
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communities
administered by the association during each of the
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following
2 years and, thereafter, shall not exceed the Cost of
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Living
Index. Funds collected shall be deposited in the Division
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of
Florida Land Sales, Condominiums, Homeowners' Associations,
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and
Mobile Homes Trust Fund Trust Fund. Funds shall be utilized
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by the
division for, but not limited to, the review and approval
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of
deed restrictions before releasing for recording at the
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county
level by the developer or owner of the initial lots to be
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developed;
education; enforcement; investigation; and
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prosecution
of policies and procedures related to mandated
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properties.
Upon transition of authorities, duties,
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responsibilities,
and rights from the developer to the parcel
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owners,
all amendments, alterations, or modifications to the
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governing
documents must be approved by at least two-thirds of
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the
parcel owners or homeowners' association members. The
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governing
documents may not contain provisions that reduce this
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percentage
of majority approval for changes to the governing
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documents.
The ombudsman may not engage the services of industry
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partisans
with a vested interest in the administration of deed-
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restricted
communities or in the mandatory homeowners'
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association
to implement its powers, who have practiced in this
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field
within the last 3 years. Furthermore not
in the best
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interest
of homeowners' associations or the individual
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association
members thereof to create or impose a bureau or
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other
agency of state government to regulate the affairs of
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homeowners'
associations. However, in accordance with s.
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720.311,
the Legislature
finds that homeowners' associations and
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their individual members
will benefit from an expedited
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alternative process for
resolution of election and recall
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disputes and presuit
mediation of other disputes involving
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covenant enforcement,
disputes relating to the transition of
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control
of the association from the developer or owner to
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members
of the association, and authorizes the department to
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hear, administer, and
determine these disputes as more fully set
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forth in this chapter.
Further, the Legislature recognizes that
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certain contract rights
have been created for the benefit of
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homeowners' associations
and members thereof before the
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effective date of this
act and that ss. 720.301-720.407 are not
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intended to impair such
contract rights, so
long as they are
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accepted
by a two-thirds majority of the homeowners' association
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members,
including, but not limited to, the rights of the
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developer to complete the
community as initially contemplated.
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Section
4. Section 720.303, Florida Statutes, is amended
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to read:
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720.303 Association
powers and duties; meetings of board;
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official records;
budgets; financial reporting; association
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funds; recalls.--
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(1) POWERS
AND DUTIES.--
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(a) An
association which operates a community as defined
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in s. 720.301, must be incorporated
in this state, operated by
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an
association that is a Florida corporation. After October 1,
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1995,
the association must be incorporated and the initial
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governing documents must
be recorded in the official records of
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the county in which the
community is located. An association may
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operate
more than one community.
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(b) The
officers and directors of an association have a
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fiduciary relationship of
to the members who are served by
the
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association.
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(c) The
powers and duties of an association include those
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set forth in this chapter
and, except as expressly limited or
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restricted
in this chapter, those specifically
set forth in the
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governing documents. The
officers and directors of the
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association
may not take any action that is inconsistent with
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the
declaration of covenants.
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(d) After
control of the association is obtained by
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members from
other than the developer, the
association may
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institute, maintain, or
settle on ,
or appeal actions or
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hearings
in its name on behalf of the all
members concerning
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matters of common
interest to the members, including, but not
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limited
to, the common areas; roof or structural components of a
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building,
or other improvements for which the association is
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responsible;
mechanical, electrical, or plumbing elements
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serving
an improvement or building for which the association is
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responsible;
representations of the developer pertaining to any
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existing
or proposed commonly used facility; and protesting ad
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valorem
taxes on commonly used facilities. The association may
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defend
actions in eminent domain or bring inverse condemnation
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actions.
Before commencing litigation any legal action,
except
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construction
defects actions against the developer which shall
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not require membership
approval, against any party in the name
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of
the association involving amounts in controversy in excess of
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$50,000
$100,000, the association must
obtain the affirmative
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approval of a majority of the members of the association
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voting
interests at a meeting of the membership
at which
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a quorum is present has
been attained.
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(e) The
association may enter into contracts for the
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benefit
of the members of the association, including, but not
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limited
to, contracts for maintaining, repairing, or improving
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the
common areas of the association. All contracts to which the
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association
is a party must contain a thirty (30) day cancellation
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clause.
This subsection does not limit
any statutory or common
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law right of any individual member
or
class of members to bring
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any
action without participation by the
association.
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(f) A
member does not have the authority
to act for the
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association by virtue of
being a member of the association.
An
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association
may have more than one class of members and may
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issue
membership certificates.
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(g) In
any civil or criminal action between a member and
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the
association, it shall not be a defense by the association
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that
the association's actions, although incompatible with the
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declaration
of covenants, have been uniformly applied.
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(h) An
association may not restrict a member's freedom of
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association
and may not limit the number of guests a member may
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have
within a 24-hour period.
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(i) An
association of 15 or fewer parcels
parcel owners
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may enforce only the
requirements of those deed restrictions
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established prior to the
purchase of each parcel upon an
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affected parcel owner or
owners.
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(j) The
officers and directors of an association may be
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personally
liable for damages to a member if the actions of the
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officers
and directors demonstrate a pattern of behavior inconsistent
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with the tenets of the governing documents resulting in
breach of
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fiduciary duty or
intended
to harass a member of the association.
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(k) Any
action of the association by and through the
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officers
and directors that limits the legal use of any portion
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of a
member's property that is incompatible with the declaration
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of
covenants shall entitle the member to compensation for the
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fair
market value of that portion of the member's property, the
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use of
which is being restricted.
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(l) In
any association with more than 50 but fewer than 75
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parcels,
for purposes of establishing setback limits, any parcel
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of 1
acre or less shall be deemed to have one front for purposes
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of
determining the required front setback, if any. Only those
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setbacks
specifically set forth in the declaration of covenants
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may be
enforced by the association. Where the covenants are
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silent,
the applicable county or municipal setbacks shall apply.
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(2) BOARD
MEETINGS.--
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(a) A
meeting of the board of directors of an association
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occurs whenever a quorum
of the board gathers to conduct
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association business. All
meetings of the board must be open to
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all members except for
meetings between the board and its
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attorney with respect to
proposed or pending litigation where
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the contents of the
discussion would otherwise be governed by
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the attorney-client
privilege.
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(b) Members
have the right to attend all meetings of the
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board and to speak on
any each
matter placed on the agenda by
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petition
of the voting interests for at least 3 minutes. The
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association may adopt
written reasonable rules expanding the
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right of members to speak
and governing the frequency, duration,
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and other manner of
member statements, which rules must be
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consistent with this
paragraph and may include a sign-up sheet
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for
members wishing to speak. Notwithstanding any other law,
the
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requirement that board
meetings and committee meetings be open
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to the members is
inapplicable to meetings between the board or
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a committee and the
association's attorney, with respect to
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meetings of the board
held for the purpose of discussing
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personnel matters.
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(c) The
bylaws shall provide for giving notice to parcel
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owners and members of all
board meetings and, if they do not do
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so, shall be deemed to
provide the following:
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1. Notices
of all board meetings and the agendas
must be
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posted in a conspicuous
place in the community at least 48 hours
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in advance of a meeting,
except in an emergency. In the
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alternative, if notice is
not posted in a conspicuous place in
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the community, notice of
each board meeting and agenda must
be
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mailed or delivered to
each member at least 7 days before the
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meeting, except in an
emergency. Notwithstanding this general
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notice requirement, for
communities with more than 100 members,
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the bylaws may provide
for a reasonable alternative to posting
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or mailing of notice for
each board meeting, including
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publication of notice,
provision of a schedule of board
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meetings, or the
conspicuous posting and repeated broadcasting
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of the notice on a
closed-circuit cable television system
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serving the homeowners'
association. However, if broadcast
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notice is used in lieu of
a notice posted physically in the
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community, the notice
must be broadcast at least four times
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every broadcast hour of
each day that a posted notice is
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otherwise required. When
broadcast notice is provided, the
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notice and agenda must be
broadcast in a manner and for a
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sufficient continuous
length of time so as to allow an average
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reader to observe the
notice and read and comprehend the entire
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content of the notice and
the agenda. The bylaws or amended
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bylaws may provide for
giving notice by electronic transmission
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in a manner authorized by
law for meetings of the board of
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directors, committee
meetings requiring notice under this
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section, and annual and
special meetings of the members;
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however, a member must
consent in writing to receiving notice by
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electronic transmission.
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2. An
assessment may not be levied at a board meeting
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unless the notice of the
meeting includes a statement that
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assessments will be
considered and the nature of the
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assessments. Written
notice of any meeting at which special
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assessments will be
considered or at which amendments to rules
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regarding parcel use will
be considered must be mailed,
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delivered, or
electronically transmitted to the members and
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parcel owners and posted
conspicuously on the property or
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broadcast on
closed-circuit cable television not less than 14
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days before the meeting.
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3. Directors
may not vote by proxy or by secret ballot at
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board meetings,
except that secret ballots may be used in the
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election
of officers. This subsection also applies to the
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meetings of any committee
or other similar body, when a final
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decision will be made
regarding the expenditure of association
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funds, and to any body
vested with the power to approve or
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disapprove architectural
decisions with respect to a specific
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parcel of residential
property owned by a member of the
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community.
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(d) If
10 20
percent of the total voting interests
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petition the board to
address an item of business, the board
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shall at its next regular
board meeting or at a special meeting
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of the board, but not
later than 60 days after the receipt of
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the petition, take the
petitioned item up on an agenda. The
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board shall give all
members notice of the meeting at which the
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petitioned item shall be
addressed in accordance with the 14-day
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notice requirement
pursuant to subparagraph (c)2. Each member
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shall have the right to
speak for at least 3 minutes on each
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matter placed on the
agenda by petition. The board shall address
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all
items on the agenda , provided
that the member signs the
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sign-up
sheet, if one is provided, or submits a written request
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to
speak prior to the meeting. Other than addressing the
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petitioned
item at the meeting, the board is not obligated to
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take
any other action requested by the petition.
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(e) Detailed
agendas for board meetings with specific
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items
that will be addressed shall be published and made
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available
to all members no less than 7 days prior to the date
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of the
board meeting.
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(3) MINUTES.--Minutes
of all meetings of the members of an
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association and of the
board of directors of an association must
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be maintained in written
form or in another form that can be
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converted into written
form within a reasonable time. A vote or
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abstention from voting on
each matter voted upon by for
each
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director present at a
board meeting shall must
be recorded in
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the minutes.
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(4) OFFICIAL
RECORDS.-- All records
of the association
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are the property of the members, except as provided
herein.
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The association shall maintain each
of the following items
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,
when applicable, which constitute the of the following items
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|
association:
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(a) Copies
of any all
plans, specifications, permits, and
|
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warranties related to
all improvements constructed on the common
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areas or other property
in the development as
platted and recorded
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that the
association is obligated
to maintain, repair, or replace. If
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such
documents do not exist, the association shall obtain the
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documents
or forfeit the right to assess any fees to maintain
|
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the
common areas of property.
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(b) A
copy of the bylaws of the association and of each
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amendment to the bylaws.
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(c) A
copy of the articles of incorporation of the
|
|
association and of each
amendment thereto.
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(d) A
copy of each set of the
declaration of covenants and
|
|
a copy of each amendment
thereto.
|
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(e) A
copy of the current rules of the homeowners'
|
|
association.
|
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(f) The
minutes of all meetings of the board of directors
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and of the members, which
minutes must be retained for at least
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7 years.
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(g) A
current roster of all members and their mailing
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addresses and parcel
identifications. The association shall also
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maintain the electronic
mailing addresses and the numbers
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designated by members for
receiving notice sent by electronic
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transmission of those
members consenting to receive notice by
|
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electronic transmission.
The electronic mailing addresses and
|
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numbers provided by unit
owners to receive notice by electronic
|
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transmission shall be
removed from association records when
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consent to receive notice
by electronic transmission is revoked.
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However, the association
is not liable for an erroneous
|
|
disclosure of the
electronic mail address or the number for
|
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receiving electronic
transmission of notices.
|
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(h) All
of the association's insurance policies or a copy
|
|
thereof, which policies
must be retained for at least 7 years.
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(i) A
current copy of all contracts to which the
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association is a party,
including, without limitation, any
|
|
management agreement,
lease, or other contract under which the
|
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association has any
obligation or responsibility. A contract or
|
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written
agreement may not be allowed to maintain property that
|
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is
not owned by and deeded to the association. Bids received
by
|
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the association for work
to be performed must also be considered
|
|
official records and must
be kept for a period of 1 year.
|
|
(j) The
financial and accounting records of the
|
|
association, kept
according to good accounting practices. All
|
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financial and accounting
records shall must
be maintained for a
|
|
period of at least 7
years. All work product of a director or officer of the
|
|
association
shall be an accounting record available
to the members on
|
|
request. The financial and accounting records
must include:
|
|
1. Accurate,
itemized, and detailed records of all
|
|
receipts and
expenditures.
|
|
2. A
current account and a periodic statement of the
|
|
account for each member,
designating the name and current
|
|
address of each member
who is obligated to pay assessments, the
|
|
due date and amount of
each assessment or other charge against
|
|
the member, the date and
amount of each payment on the account,
|
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and the balance due.
|
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3. All
tax returns, financial statements, and financial
|
|
reports of the
association.
|
|
4. Any
other records that identify, measure, record, or
|
|
communicate financial
information.
|
|
5.
All information regarding salaries and/or benefits of employees |
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of
the association. |
|
(k) A
copy of the disclosure summary described in s.
|
|
720.401(1).
|
|
(l) All
other written records of the association not
|
|
specifically included in
the foregoing which are related to the
|
|
operation of the
association.
|
|
(m) All
interpretations of any governing documents, as
|
|
provided
by any legal source or attorney as long as they are not
|
|
part
of a pending lawsuit.
|
|
(n) All
architectural requests and approvals or denials,
|
|
which
shall be maintained as long as the association exists or
|
|
is
active.
|
|
(5) INSPECTION
AND COPYING OF RECORDS.--The official
|
|
records shall be
maintained within the county in which the
|
|
governing
documents are recorded state
and must be open to
|
|
inspection and available
for photocopying by machine, video,
|
|
digital
cameras, or any other methods available to members or
|
|
their authorized agents
at reasonable times and places within 10
|
|
business days after
receipt of a written request for access.
|
|
This subsection may be
complied with by having a copy of the
|
|
official records
available for inspection or copying in the
|
|
community. If the
association has a photocopy machine available
|
|
where the records are
maintained, it must provide parcel owners
|
|
with copies on request
during the inspection if the entire
|
|
request
is limited to no more than 25 pages.
|
|
(a) The
failure of an association to provide access to the
|
|
records within 10
business days after receipt of a written
|
|
request creates a
rebuttable presumption that the association
|
|
willfully failed to
comply with this subsection. The association shall
|
|
state a reason for denial of each requested record that does not
exist.
|
|
(b) A
member who is denied access to official records is
|
|
entitled to the actual
damages or minimum damages for the
|
|
association's willful
failure to comply with this subsection.
|
|
The minimum damages are
to be $100 $50 per calendar day up to 10
|
|
days, the calculation to
begin on the 11th business day after
|
|
receipt of the written
request.
|
|
(c) The
association may adopt reasonable written rules
|
|
governing the frequency,
time, location, notice, records to be
|
|
inspected, and
manner of inspections, but may not impose a
|
|
requirement that a parcel
owner demonstrate any proper purpose
|
|
for the inspection, state
any reason for the inspection, or
|
|
limit a parcel owner's
right to inspect records to less than one
|
|
8-hour business day per
month. The association may only impose
|
|
fees to cover the actual
costs of providing copies of the
|
|
official records,
including, without limitation, the costs of
|
|
copying.
The association may charge up to 5
50 cents per page
|
|
for copies made on the
association's photocopier. If the
|
|
association does not have
a photocopy machine available where
|
|
the records are kept, or
if the records requested to be copied
|
|
exceed 25 pages in
length, the association may have copies made
|
|
by an outside vendor and
may charge the actual cost of copying
|
|
only.
The association may impose a one-time fee not
to exceed 1
|
|
cent
per page and limited to a total of $5 if the parcel owner
|
|
provides
the necessary equipment and materials for copying and
|
|
the
labor to make the requested copies. The association shall
|
|
maintain an adequate
number of copies of the recorded governing
|
|
documents, to ensure
their availability to members and
|
|
prospective members.
Notwithstanding the provisions of this
|
|
paragraph, the following
records shall not be accessible to
|
|
members 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, any record
|
|
prepared by an
association attorney or prepared at the
|
|
attorney's express
direction which reflects a mental impression,
|
|
conclusion, litigation
strategy, or legal theory of the attorney
|
|
or the association and
was prepared exclusively for civil or
|
|
criminal litigation or
for adversarial administrative
|
|
proceedings or which was
prepared in anticipation of imminent
|
|
civil or criminal
litigation or imminent adversarial
|
|
administrative
proceedings until the conclusion of the
|
|
litigation or adversarial
administrative proceedings.
|
|
2. Information
obtained by an association in connection
|
|
with the approval of the
lease, sale, or other transfer of a
|
|
parcel.
|
|
3. Disciplinary,
health, insurance, and personnel records
|
|
of the association's
employees.
|
|
4. Medical
records of parcel owners or community
|
|
residents.
|
|
(8) ASSOCIATION
FUNDS; COMMINGLING.--
|
|
(a) All
association funds held by a developer shall be
|
|
maintained separately in
the association's name. Reserve and
|
|
operating funds of the
association shall not be commingled prior
|
|
to turnover except the
association may jointly invest reserve
|
|
funds; however, such
jointly invested funds must be accounted
|
|
for separately.
|
|
(b) No
developer in control of a homeowners' association
|
|
shall commingle any
association funds with his or her funds or
|
|
with the funds of any
other homeowners' association, or
|
|
community association,
or corporation for profit created by the
|
|
developer.
|
|
(c) Association
funds may not be used by a developer to
|
|
defend a civil or
criminal action, administrative proceeding, or
|
|
arbitration proceeding
that has been filed against the developer
|
|
or directors appointed to
the association board by the
|
|
developer, even when the
subject of the action or proceeding
|
|
concerns the operation of
the developer-controlled association.
|
|
(9) APPLICABILITY.--Sections
617.1601-617.1604 do not
|
|
apply to a homeowners'
association in which the members have the
|
|
inspection and copying
rights set forth in this section.
|
|
(10) RECALL
OF DIRECTORS.--
|
|
(a)1. Regardless
of any provision to the contrary
|
|
contained in the governing documents,
subject to the provisions
|
|
of s. 720.307 regarding transition of
association control, any
|
|
member of the board of directors shall
may be recalled and
|
|
removed from office with or without
cause by a majority of the
|
|
total voting interests
who must be the owner of
record pursuant
|
|
to the deed recorded in the
official records of the County in which
|
|
the community is located.
|
|
2. When
the governing documents, including the
|
|
declaration, articles of
incorporation, or bylaws, provide that
|
|
only a specific class of members is
entitled to elect a board
|
|
director or directors, only that
class of members may vote to
|
|
recall those board directors so
elected.
|
|
(b)1. Board
directors may be recalled by an agreement in
|
|
writing or by written ballot without
a membership meeting. The
|
|
agreement in writing or the written
ballots, or a copy thereof,
|
|
shall be served on the association by
certified mail or by
|
|
personal service in the manner
authorized by chapter 48 and the
|
|
Florida Rules of Civil Procedure.
|
|
2. The
board shall duly notice and hold a meeting of the
|
|
board within 5 full business days
after receipt of the agreement
|
|
in writing or written ballots. At the
meeting, the board shall
|
|
either certify the written ballots or
written agreement to
|
|
recall a director or directors of the
board, in which case such
|
|
director or directors shall be
recalled effective immediately
|
|
and shall turn over to the board
within 5 full business days any
|
|
and all records and property of the
association in their
|
|
possession, or proceed as described
in paragraph (d).
|
|
3. When
it is determined by the department pursuant to
|
|
binding arbitration proceedings that
an initial recall effort
|
|
was defective, written recall
agreements or written ballots used
|
|
in the first recall effort and not
found 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 120
|
|
days after it has been signed by the
member.
|
|
4. Any
rescission or revocation of a member's written
|
|
recall ballot or agreement must be in
writing and, in order to
|
|
be effective, must be delivered to
the association before the
|
|
association is served with the
written recall agreements or
|
|
ballots.
|
|
5. The
agreement in writing or ballot shall list at least
|
|
as many possible replacement
directors as there are directors
|
|
subject to the recall, when at least
a majority of the board is
|
|
sought to be recalled; the person
executing the recall
|
|
instrument may vote for as many
replacement candidates as there
|
|
are directors subject to the recall.
|
|
(c)1. If
the declaration, articles of incorporation, or
|
|
bylaws
specifically provide, the Members may also recall and
|
|
remove a board director or directors
by a vote taken at a
|
|
special meeting
of the members. If
so provided in the governing
|
|
documents,
A special meeting of the members to recall a director
|
|
or directors of the board of
administration may be called by 10
|
|
percent of the voting interests
giving notice of the meeting as
|
|
required for a meeting of members,
and the notice shall state
|
|
the purpose of the meeting.
Electronic transmission may not be
|
|
used as a method of giving notice of
a meeting called in whole
|
|
or in part for this purpose.
|
|
2. The
board shall duly notice and hold a board meeting
|
|
within 5 full business days after the
adjournment of the member
|
|
meeting to recall one or more
directors. At the meeting, the
|
|
board shall certify the recall, in
which case such member or
|
|
members shall be recalled effective
immediately and shall turn
|
|
over to the board within 5 full
business days any and all
|
|
records and property of the
association in their possession, or
|
|
shall proceed as set forth in
subparagraph (d).
|
|
(d) If
the board determines not to certify the written
|
|
agreement or written ballots to
recall a director or directors
|
|
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
|
|
meeting, file with the department a
petition for binding
|
|
arbitration pursuant to the
applicable procedures in ss.
|
|
718.112(2)(j) and 718.1255 and the
rules adopted thereunder. For
|
|
the purposes of this section, the
members who voted at the
|
|
meeting or who executed the agreement
in writing shall
|
|
constitute one party under the
petition for arbitration. If the
|
|
arbitrator certifies the recall as to
any director or directors
|
|
of the board, the recall will be
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 all
|
|
records of the association in their
possession within 5 full
|
|
business days after the effective
date of the recall.
|
|
(e) If
a vacancy occurs on the board as a result of a
|
|
recall and less than a majority of
the board directors are
|
|
removed, the vacancy may be filled by
the affirmative vote of a
|
|
majority of the remaining directors,
notwithstanding any
|
|
provision to the contrary contained
in this subsection or in the
|
|
association documents. If vacancies
occur on the board as a
|
|
result of a recall and a majority or
more of the board directors
|
|
are removed, the vacancies shall be
filled by members voting in
|
|
favor of the recall; if removal is at
a meeting, any vacancies
|
|
shall be filled by the members at the
meeting. If the recall
|
|
occurred by agreement in writing or
by written ballot, members
|
|
may vote for replacement directors in
the same instrument in
|
|
accordance with procedural rules
adopted by the division, which
|
|
rules need not be consistent with
this subsection.
|
|
(f) If
the board fails to duly notice and hold a board
|
|
meeting within 5 full business days
after service of an
|
|
agreement in writing or within 5 full
business days after the
|
|
adjournment of the member recall
meeting, the recall shall be
|
|
deemed effective and the board
directors so recalled shall
|
|
immediately turn over to the board
all records and property of
|
|
the association.
|
|
(g) If
a director who is removed fails to relinquish his
|
|
or her office or turn over records as
required under this
|
|
section, the circuit court in the
county where the association
|
|
maintains its principal office may,
upon the petition of the
|
|
association, summarily order the
director to relinquish his or
|
|
her office and turn over all
association records upon
|
|
application of the association.
|
|
(h) The
minutes of the board meeting at which the board
|
|
decides whether to certify the recall
are an official
|
|
association record. The minutes must
record the date and time of
|
|
the meeting, the decision of the
board, and the 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, the minutes must identify
the parcel number and the
|
|
specific reason for each such
rejection.
|
|
(i) When
the recall of more than one board director is
|
|
sought, the written agreement,
ballot, or vote at a meeting
|
|
shall provide for a separate vote for
each board director sought
|
|
to be recalled.
|
|
|
|
Section
5. Subsections (2) and (6) of section 720.304,
|
|
Florida Statutes, are amended, and
subsection (7) is added to
|
|
that section, to read:
|
|
720.304 Right
of owners to peaceably assemble; display of
|
|
flag; SLAPP suits prohibited.--
|
|
(2) Any
homeowner may display one stationary or
portable,
|
|
removable United States flag or
official flag of the State of
|
|
Florida in a respectful manner, and
on Armed Forces Day,
|
|
Memorial Day, Flag Day, Independence
Day, and Veterans Day may
|
|
display in a respectful manner
portable, removable official
|
|
flags, not larger than 41/2 feet by 6
feet, which represent the
|
|
United States Army, Navy, Air Force,
Marine Corps, or Coast
|
|
Guard, from
a freestanding, portable, removable, or telescoping
|
|
flagpole not to
exceed 20 feet in the front, rear, or side yard
|
|
regardless of any declaration rules
or requirements dealing with
|
|
flags or decorations.
|
|
(6) Any
parcel owner may display a sign of reasonable size
|
|
provided by a contractor for security
services within 10 feet of
|
|
any entrance to the home. The
sign shall not exceed 18 inches
|
|
high by 18 inches
wide, and the bottom of the sign shall be no
|
|
higher than 24
inches from the ground elevation within the
|
|
permitted area of
installation. Other specifications may be
|
|
approved by the
association, but in no case shall the
|
|
specifications be
less than authorized by this section.
|
|
(7)(a) Rules
and regulations pertaining to common elements
|
|
shall be protected
by the First Amendment to the United States
|
|
Constitution and
s. 5, Art. I of the State Constitution, and
|
|
associations shall
not in any way abridge or deny constitutional
|
|
rights and
freedoms of homeowners with respect to use of such
|
|
common elements.
|
|
(b) All
common elements, common areas, and recreational
|
|
facilities serving
any association shall be available to unit
|
|
owners in the
association served thereby and their invited
|
|
guests for the use
intended for such common elements, common
|
|
areas, and
recreational facilities. The entity or entities
|
|
responsible for
the operation of the common elements, common
|
|
areas, and
recreational facilities may adopt reasonable rules
|
|
and regulations
pertaining to the use of such common elements,
|
|
common areas, and
recreational facilities as to the manner and
|
|
times they are
used, but not the purpose for which they are
|
|
used. No entity or
entities shall unreasonably restrict any unit
|
|
owner's right to
peaceably assemble or right to invite public
|
|
officers or
candidates for public office to appear and speak in
|
|
common elements,
common areas, and recreational facilities.
|
|
(c) Any
owner prevented from exercising rights guaranteed
|
|
by this section
may bring an action in the appropriate court of
|
|
the county in
which the alleged infringement occurred, and, upon
|
|
favorable
adjudication, the court shall enjoin the enforcement
|
|
of any provision
contained in any association.
|
|
|
|
Section
6. Section 720.305, Florida Statutes, is amended
|
|
to read:
|
|
720.305 Obligations
of members; remedies at law or in
|
|
equity; levy
of fines and suspension of use rights; failure to
|
|
fill sufficient number of vacancies
on board of directors to
|
|
constitute a quorum; appointment of
receiver upon petition of
|
|
any member.--
|
|
(1) Each
member and the member's tenants, guests, and
|
|
invitees, and each association, are
governed by, and must comply
|
|
with, this chapter, the governing
documents of the community,
|
|
and the rules of the association.
Actions at law or in equity,
|
|
or both, to redress alleged failure
or refusal to comply with
|
|
these provisions may be brought by
the association or by any
|
|
member against:
|
|
(a) The
association;
|
|
(b) A
member;
|
|
(c) Any
director or officer of an association who
|
|
willfully and knowingly or
otherwise fails to comply with these
|
|
provisions; and
|
|
(d) Any
tenants, guests, or invitees occupying a parcel or
|
|
using the common areas.
|
|
|
|
The prevailing party in any such
litigation is entitled to
|
|
recover reasonable attorney's fees
and costs. A member
|
|
prevailing in an action between the association and the member |
|
under this section, in addition to recovering his or her
reasonable |
|
attorney's fees, may recover additional amounts as determined |
|
by the court to be necessary to reimburse the member for his |
|
or her share of assessments levied by the association to fund |
|
its expenses of the litigation. This relief does not exclude other |
|
remedies provided by law. This section does not deprive any |
|
person of any other available right or remedy.
This section does |
|
not deprive any person of any other
available right or remedy.
|
|
(2) If
the governing documents so provide, An association
|
|
may suspend,
for a reasonable period of time, the rights of a
|
|
member or a member's tenants, guests,
or invitees, or both, to
|
|
use common areas and facilities if
so and may levy reasonable
|
|
fines, not to
exceed $100 per violation, against any member or
|
|
any tenant, guest,
or invitee. A fine may be levied on the basis
|
|
of each day of a
continuing violation, with a single notice and
|
|
opportunity for
hearing, except that no such fine shall exceed
|
|
$1,000 in the
aggregate unless otherwise provided in the
|
|
governing documents. A
fine shall not become a lien against a
|
|
parcel. In any
action to recover a fine, the prevailing party is
|
|
entitled to
collect its reasonable attorney's fees and costs
|
|
from the
nonprevailing party as determined by the court.
|
|
(a) A
fine or suspension may not be
imposed without notice
|
|
of at least 14 days to the person
sought to be fined or
|
|
suspended and an opportunity for a
hearing before a committee of
|
|
at least three members appointed by
the board who are not
|
|
officers, directors, or employees of
the association, or the
|
|
spouse, parent, child, brother, or
sister of an officer,
|
|
director, or employee. If the
committee, by majority vote, does
|
|
not approve a proposed fine
or suspension, it may not be
|
|
imposed.
|
|
(b) The
requirements of this subsection do not apply to
|
|
the imposition of suspensions or
fines upon any member because
|
|
of the failure of the member to pay
assessments or other charges
|
|
when due if
such action is authorized by the governing
|
|
documents.
|
|
(c) Suspension
of common-area-use rights shall not impair
|
|
the right of an owner or tenant of a
parcel to have vehicular
|
|
and pedestrian ingress to and egress
from the parcel, including,
|
|
but not limited to, the right to
park.
|
|
(3) If
the governing documents so provide, an association
|
|
may suspend the voting rights of a
member for the nonpayment of
|
|
regular annual assessments that are
delinquent in excess of 90
|
|
days.
|
|
(4) If
an association fails to fill vacancies on the board
|
|
of directors sufficient to constitute
a quorum in accordance
|
|
with the bylaws, any member may apply
to the circuit court that
|
|
has jurisdiction over the community
served by the association
|
|
for the appointment of a receiver to
manage the affairs of the
|
|
association. At least 30 days before
applying to the circuit
|
|
court, the member shall mail to the
association, by certified or
|
|
registered mail, and post, in a
conspicuous place on the
|
|
property of the community served by
the association, a notice
|
|
describing the intended action,
giving the association 30 days
|
|
to fill the vacancies. If during such
time the association fails
|
|
to fill a sufficient number of
vacancies so that a quorum can be
|
|
assembled, the member may proceed
with the petition. If a
|
|
receiver is appointed, the
homeowners' association shall be
|
|
responsible for the salary of the
receiver, court costs,
|
|
attorney's fees, and all other
expenses of the receivership. The
|
|
receiver has all the powers and
duties of a duly constituted
|
|
board of directors and shall serve
until the association fills a
|
|
sufficient number of vacancies on the
board so that a quorum can
|
|
be assembled.
|
|
|
|
Section
7. Section 720.3055, Florida Statutes, is amended
|
|
to read:
|
|
720.3055 Contracts
for products and services; in writing;
|
|
bids; exceptions.--
|
|
(1) All
contracts as further described in this section or
|
|
any contract that is not to be fully
performed within 1 year
|
|
after the making thereof for the
purchase, lease, or renting of
|
|
materials or equipment to be used by
the association in
|
|
accomplishing its purposes under this
chapter or the governing
|
|
documents,
and all contracts for the provision of services,
|
|
shall be in writing. If a contract
for the purchase, lease, or
|
|
renting of materials or equipment, or
for the provision of services,
|
|
requires payment by the
association that exceeds $100,000
or
|
|
10
percent of the total annual budget of
the association, including
|
|
reserves, the association must obtain
competitive bids for the
|
|
materials, equipment, or services.
Nothing contained in this
|
|
section shall be construed to require
the association to accept
|
|
the lowest bid.
|
|
(2)(a)1. Notwithstanding
the foregoing, Contracts with
|
|
employees of the association, and
contracts for attorney,
|
|
accountant, architect, community
association manager,
|
|
engineering, and landscape architect
services are not subject to
|
|
the provisions of this section.
|
|
2. A
contract executed before October 1, 2004, and any
|
|
renewal thereof, is not subject to
the competitive bid
|
|
requirements of this section. If a
contract was awarded under
|
|
the competitive bid procedures of
this section, any renewal of
|
|
that contract is not subject to such
competitive bid
|
|
requirements if the contract contains
a provision that allows
|
|
the board to cancel the contract on
30 days' notice. Materials,
|
|
equipment, or services provided to an
association under a local
|
|
government franchise agreement by a
franchise holder or a
|
|
manager
are not subject to the competitive bid requirements of
|
|
this section. A contract with a
manager, if made by a
|
|
competitive
bid, may be made for up to 3 years and
must contain
|
|
a 30-day
termination clause. An association whose declaration or
|
|
bylaws provide for competitive
bidding for services may operate
|
|
under the provisions of that
declaration or bylaws in lieu of
|
|
this section if those provisions are
not less stringent than the
|
|
requirements of this section.
|
|
(b) Nothing
contained in this section is intended to limit
|
|
the ability of an association to
obtain needed products and
|
|
services in an emergency.
|
|
(c) This
section does not apply if the business entity
|
|
with which the association desires to
enter into a contract is
|
|
the only source of supply within the
county serving the
|
|
association.
|
|
(d) Nothing
contained in this section shall excuse a party
|
|
contracting to provide maintenance or
management services from
|
|
compliance with s. 720.309.
|
|
|
|
Section
8. Section 720.306, Florida Statutes, is amended
|
|
to read:
|
|
720.306 Meetings
of members; voting and election
|
|
procedures; amendments.--
|
|
(1) QUORUM;
AMENDMENTS.--
|
|
(a) Unless
otherwise required by law, and other than those
|
|
matters set forth
in paragraph (b), any governing document of an
|
|
association shall
only be amended by the affirmative vote of
|
|
two-thirds of the
voting interests of the association subject to
|
|
the following:
|
|
1. All
amendments offered for official recording must be
|
|
submitted as
contained within the covenants and restrictions in
|
|
their entirety.
|
|
2. Within
12 months of enactment of this subsection all
|
|
duly registered
covenants and restrictions must be complete and
|
|
set forth in
plain, easily understandable English. Unless
a
|
|
lower number is
provided in the bylaws, the percentage of voting
|
|
interests required
to constitute a quorum at a meeting of the
|
|
members shall be
30 percent of the total voting interests.
|
|
Unless otherwise
provided in this chapter or in the articles of
|
|
incorporation or
bylaws, decisions that require a vote of the
|
|
members must be
made by the concurrence of at least a majority
|
|
of the voting
interests present, in person or by proxy, at a
|
|
meeting at which a
quorum has been attained.
|
|
(b) Unless
otherwise provided in the governing documents
|
|
or required by
law, and other than those matters set forth in
|
|
paragraph (c), any
governing document of an association may be
|
|
amended by the
affirmative vote of two-thirds of the voting
|
|
interests of the
association.
|
|
(b)(c) Unless
otherwise provided in the governing
|
|
documents as
originally recorded or permitted by this chapter or
|
|
chapter 617,
An amendment may not materially and adversely alter
|
|
the proportionate voting interest
appurtenant to a parcel or
|
|
increase the proportion or percentage
by which a parcel shares
|
|
in the common expenses of the
association unless the record
|
|
parcel owner and all record owners of
liens on the parcels join
|
|
in the execution of the amendment. For
purposes of this section,
|
|
a change in quorum
requirements is not an alteration of voting
|
|
interests.
|
|
(c) An
amendment restricting owners' rights relating to
|
|
the rental of
homes applies only to parcel owners who consent to
|
|
the amendment and
to parcel owners who purchase their parcels
|
|
after the
effective date of that amendment.
|
|
(2) ANNUAL
MEETING.--The association shall hold a meeting
|
|
of its members annually for the
transaction of any and all
|
|
proper business at a time, date, and
place stated in, or fixed
|
|
in accordance with, the bylaws. The
election of directors, if
|
|
one is required to be held, must be
held at, or in conjunction
|
|
with, the annual meeting or
as provided in the governing
|
|
documents.
|
|
(3) SPECIAL
MEETINGS.--Special meetings must be held when
|
|
called by the board of directors or,
unless a different
|
|
percentage
is stated in the governing documents, by at least 10
|
|
percent of the total voting interests
of the association.
|
|
Business conducted at a special
meeting is limited to the
|
|
purposes described in the notice and
the agenda of the meeting.
|
|
(4) CONTENT
OF NOTICE.--Unless law or the governing
|
|
documents
require otherwise, Notice of an annual meeting need
|
|
not include a description of the
purpose or purposes for which
|
|
the meeting is called. Notice of a
special meeting must include
|
|
an agenda
and a description of the purpose or purposes for which
|
|
the meeting is called.
|
|
(5) NOTICE
OF MEETINGS.--The bylaws shall provide for
|
|
giving notice to members of all
member meetings, and if they do
|
|
not do so shall be deemed to provide
the following: The
|
|
association shall give all parcel
owners and members actual
|
|
notice of all membership meetings,
which shall be mailed,
|
|
delivered, or electronically
transmitted to the members not less
|
|
than 14 days prior to the meeting.
Evidence of compliance with
|
|
this 14-day notice shall be made by
an affidavit executed by the
|
|
person providing the notice and filed
upon execution among the
|
|
official records of the association.
In addition to mailing,
|
|
delivering, or electronically
transmitting the notice of any
|
|
meeting, the association may, by
reasonable rule, adopt a
|
|
procedure for conspicuously posting
and repeatedly broadcasting
|
|
the notice and the agenda on a
closed-circuit cable television
|
|
system serving the association. When
broadcast notice is
|
|
provided, the notice and agenda must
be broadcast in a manner
|
|
and for a sufficient continuous
length of time so as to allow an
|
|
average reader to observe the notice
and read and comprehend the
|
|
entire content of the notice and the
agenda.
|
|
(6) RIGHT
TO SPEAK.--Members and parcel owners have the
|
|
right to attend all membership
meetings and to speak at any
|
|
meeting with reference to any
all items opened for discussion or
|
|
included
on the agenda. Notwithstanding any provision
to the
|
|
contrary in the
governing documents or any rules adopted by the
|
|
board or by
the membership, A member and a parcel owner have
|
|
the
right to speak at
least once for at least 3 minutes on each
|
|
agenda
any item,
provided that the member or parcel owner
|
|
submits a
written request to speak prior to the meeting. The
|
|
association may adopt written
reasonable rules governing the
|
|
frequency and,
duration, and other manner of
member and parcel
|
|
owner statements, which rules must be
consistent with this
|
|
subsection.
|
|
(7) ADJOURNMENT.--Unless
the bylaws require otherwise,
|
|
Adjournment of an annual or special
meeting to a different date,
|
|
time, or place must be announced at
that meeting before an
|
|
adjournment is taken, or notice must
be given of the new date,
|
|
time, or place pursuant to s.
720.303(2). Any business that
|
|
might have been transacted on the
original date of the meeting
|
|
may be transacted at the adjourned
meeting. If a new record date
|
|
for the adjourned meeting is or must
be fixed under s. 617.0707,
|
|
notice of the adjourned meeting must
be given to persons who are
|
|
entitled to vote and are members as
of the new record date but
|
|
were not members as of the previous
record date.
|
|
(8) PROXY
VOTING.--The members have the right, unless
|
|
otherwise provided in this subsection
or in the governing
|
|
documents,
to vote in person or by limited
proxy. To be valid, a
|
|
limited
proxy must be dated, must state the date, time, and
|
|
place of the meeting for which it was
given, and must be signed
|
|
by the authorized person who executed
the proxy. A limited proxy
|
|
is effective only for the specific
meeting for which it was
|
|
originally given, as the meeting may
lawfully be adjourned and
|
|
reconvened from time to time, and
automatically expires 60 90
|
|
days after the date of the meeting
for which it was originally
|
|
given. A proxy is revocable at any
time at the pleasure of the
|
|
person who executes it. If the proxy
form expressly so provides,
|
|
any proxy holder may appoint, in
writing, a substitute to act in
|
|
his or her place.
|
|
(9) ELECTIONS.--
|
|
(a) Election
procedures.--
|
|
1. The
members of the board shall be elected by written
|
|
ballot or voting
machine. Proxies shall in no event be used in
|
|
electing the
board, either in general elections or elections to
|
|
fill vacancies
caused by recall, resignation, or otherwise,
|
|
unless otherwise
provided in this chapter. Not less than 60 days
|
|
before a scheduled
election, the association shall mail,
|
|
deliver, or
electronically transmit, whether by separate
|
|
association
mailing or included in another association mailing,
|
|
delivery, or
transmission, including regularly published
|
|
newsletters, to
each parcel owner entitled to a vote, a first
|
|
notice of the date
of the election. Any homeowner or other
|
|
eligible person
desiring to be a candidate for the board must
|
|
give written
notice to the association not less than 40 days
|
|
before a scheduled
election. Together with the written notice
|
|
and agenda as set
forth in this section, the association shall
|
|
mail, deliver, or
electronically transmit a second notice of the
|
|
election to all
parcel owners entitled to vote therein, with a
|
|
ballot that shall
list all candidates. Upon request of a
|
|
candidate, the
association shall include an information sheet,
|
|
no larger than 8
1/2 inches by 11 inches, which must be
|
|
furnished by the
candidate not less than 35 days before the
|
|
election, to be
included with the mailing, delivery, or
|
|
transmission of
the ballot, with the costs of mailing, delivery,
|
|
or electronic
transmission and copying to be borne by the
|
|
association. The
association is not liable for the contents of
|
|
the information
sheets prepared by the candidates. In order to
|
|
reduce costs, the
association may print or duplicate the
|
|
information sheets
on both sides of the paper. The division
|
|
shall by rule
establish voting procedures consistent with the
|
|
provisions
contained in this chapter, including rules
|
|
establishing
procedures for giving notice by electronic
|
|
transmission and
rules providing for the secrecy of ballots.
|
|
Elections shall be
decided by a plurality of those ballots cast.
|
|
There shall be no
quorum requirement; however, at least 20
|
|
percent of the
eligible voters must cast a ballot in order to
|
|
have a valid
election of members of the board. No parcel owner
|
|
shall permit any
other person to vote his or her ballot, and any
|
|
such ballots
improperly cast shall be deemed invalid, provided
|
|
any parcel owner
who violates this provision may be fined by the
|
|
association in
accordance with s. 720.305(2). A parcel owner
|
|
needing assistance
in casting the ballot for the reasons stated
|
|
in s. 101.051 may
obtain assistance in casting the ballot. The
|
|
regular election
shall occur on the date of the annual meeting.
|
|
Notwithstanding
the provisions of this subparagraph, an election
|
|
is not required
unless more candidates file notices of intent to
|
|
run or more are
nominated than board vacancies exist.
|
|
2. Unless
otherwise provided in the bylaws, any vacancy
|
|
occurring on the
board before the expiration of a term may be
|
|
filled by the
affirmative vote of the majority of the remaining
|
|
directors, even if
the remaining directors constitute 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
|
|
the election
procedures must conform to the requirements of this
|
|
section unless the
association has opted out of the statutory
|
|
election process,
in which case the bylaws of the association
|
|
control. Unless
otherwise provided in the bylaws, a board member
|
|
appointed or
elected under this section shall fill the vacancy
|
|
for the unexpired
term of the seat being filled. Filling
|
|
vacancies created
by recall is governed by s. 720.303(10) and
|
|
rules adopted by
the division.
|
|
3. Fifteen
percent of the total voting interests in a
|
|
homeowners'
association, or six parcel owners, whichever is
|
|
greater, may
petition the division to appoint an election
|
|
monitor to attend
the annual meeting of the homeowners and
|
|
conduct the
election of directors. The division shall appoint a
|
|
division employee,
a person or persons specializing in
|
|
homeowners'
association election monitoring, or an attorney
|
|
licensed to
practice in this state as the election monitor. All
|
|
costs associated
with the election monitoring process shall be
|
|
paid by the
association. The division shall adopt a rule
|
|
establishing
procedures for the appointment of election monitors
|
|
and the scope and
extent of the monitor's role in the election
|
|
process.
|
|
(b) Terms;
eligibility of candidates.--
|
|
1. Any owner shall not serve on the board as a director
|
|
for more than two terms nor longer than four years. A
|
|
member
shall not serve as
the president or vice president
|
|
of
the corporation for more than one term.
|
|
2. Coowners
of a parcel may not serve as members of the
|
|
board of
administration at the same time.
|
|
3. After
transition of control in a community, only
|
|
members as defined
in s. 720.301(1) shall be eligible as
|
|
candidates for the
board.
|
|
4. A
person who has been convicted of any felony by any
|
|
court of record in
the United States and who has not had his or
|
|
her right to vote
restored pursuant to law in the jurisdiction
|
|
of his or her
residence is not eligible for board membership.
|
|
The validity of an
action by the board is not affected if it is
|
|
later determined
that a member of the board is ineligible for
|
|
board membership
due to having been convicted of a felony.
|
|
Elections of
directors must be conducted in accordance with the
|
|
procedures set
forth in the governing documents of the
|
|
association. All
members of the association shall be eligible to
|
|
serve on the board
of directors, and a member may nominate
|
|
himself or herself
as a candidate for the board at a meeting
|
|
where the election
is to be held. Except as otherwise provided
|
|
in the governing
documents, boards of directors must be elected
|
|
by a plurality of
the votes cast by eligible voters. Any
|
|
election dispute
between a member and an association must be
|
|
submitted to
mandatory binding arbitration with the division.
|
|
Such proceedings
shall be conducted in the manner provided by s.
|
|
718.1255 and the
procedural rules adopted by the division.
|
|
(10) RECORDING.--Any
parcel owner may electronically tape
|
|
record any
or videotape meetings of the board
of directors, any
|
|
committees and
meetings of the members. The board of
directors
|
|
of the
association may adopt reasonable
rules governing the
|
|
taping of
meetings of the board and the
membership. However,
|
|
those rules
may not restrict
the parcel owners' rights to
|
|
electronically
record the meeting
using, but not limited to,
|
|
battery-operated
or electrical
equipment.
|
|
|
|
Section
8. Section 720.307, Florida Statutes, is amended
|
|
to read:
|
|
720.307 Transition
of association control in a
|
|
community.--With respect to
homeowners' associations:
|
|
(1) Members
other than the developer are entitled to elect
|
|
at least a majority of the members of
the board of directors of
|
|
the homeowners' association when the
earlier of the following
|
|
events occurs:
|
|
(a) Three
months after 75 90
percent of the parcels in all
|
|
phases of the community that will
ultimately be operated by the
|
|
homeowners' association have been
conveyed to members; or
|
|
(b) Such
other percentage of the parcels has been conveyed
|
|
to members, or such other date or
event has occurred, as is set
|
|
forth in the governing documents in
order to comply with the
|
|
requirements of any governmentally
chartered entity with regard
|
|
to the mortgage financing of parcels.
|
|
|
|
For purposes of this section, the
term "members other than the
|
|
developer" shall not include
builders, contractors, or others
|
|
who purchase a parcel for the purpose
of constructing
|
|
improvements thereon for resale.
|
|
(2) The
developer is entitled to elect at least one member
|
|
of the board of directors of the
homeowners' association as long
|
|
as the developer holds for sale in
the ordinary course of
|
|
business at least 5 percent of the
parcels in all phases of the
|
|
community. After the developer
relinquishes control of the
|
|
homeowners' association, the
developer may exercise the right to
|
|
vote any developer-owned voting
interests in the same manner as
|
|
any other member, except for purposes
of reacquiring control of
|
|
the homeowners' association or
selecting the majority of the
|
|
members of the board of directors.
|
|
(3) Prior
to turnover, the developer or owner of all
|
|
common areas shall
convey the title to all common areas to the
|
|
association
immediately upon incorporation of the association.
|
|
If additional
common areas are acquired prior to transition of
|
|
control and
subject to the governing documents, title to those
|
|
common areas shall
also be immediately transferred to the
|
|
association.
|
|
(4) At
the time the members are entitled to elect at least
|
|
a majority of the board of directors
of the homeowners'
|
|
association, the developer shall, at
the developer's expense,
|
|
within no more than 30
90 days deliver the following
documents
|
|
to the board:
|
|
(a) All
deeds to common property owned by the association
|
|
or the developer.
|
|
(b) The
original of the association's declarations of
|
|
covenants and restrictions.
|
|
(c) A
certified copy of the articles of incorporation of
|
|
the association.
|
|
(d) A
copy of the bylaws.
|
|
(e) The
minute books, including all minutes.
|
|
(f) The
books and records of the association.
|
|
(g) Policies,
rules, and regulations, if any, which have
|
|
been adopted.
|
|
(h) Resignations
of directors who are required to resign
|
|
because the developer is required to
relinquish control of the
|
|
association.
|
|
(i) The
financial records of the association from the date
|
|
of incorporation through the date of
turnover.
|
|
(j) All
association funds and control thereof.
|
|
(k) All
tangible property of the association.
|
|
(l) A
copy of all contracts which may be in force with the
|
|
association as one of the parties.
|
|
(m) A
list of the names and addresses and telephone
|
|
numbers of all contractors,
subcontractors, or others in the
|
|
current employ of the association.
|
|
(n) Any
and all insurance policies in effect.
|
|
(o) Any
permits issued to the association by governmental
|
|
entities.
|
|
(p) Any
and all warranties in effect.
|
|
(q) A
roster of current homeowners and their addresses and
|
|
telephone numbers and section and lot
numbers.
|
|
(r) Employment
and service contracts in effect.
|
|
(s) All
other contracts and agreements in effect to which
|
|
the association is a party.
|
|
(t) The
financial records, including financial statements
|
|
of the
association, and source documents from the incorporation
|
|
of the association
through the date of turnover. The records
|
|
shall be audited
by an independent certified public accountant
|
|
for the period of
the incorporation of the association or for
|
|
the period covered
by the last audit, if an audit has been
|
|
performed for each
fiscal year since incorporation. All
|
|
financial
statements shall be prepared in accordance with
|
|
generally accepted
accounting standards and shall be audited in
|
|
accordance with
generally accepted auditing standards as
|
|
prescribed by the
Board of Accountancy. The accountant
|
|
performing the
review shall examine to the extent necessary
|
|
supporting
documents and records, including the cash
|
|
disbursements and
related paid invoices to determine whether
|
|
expenditures were
for association purposes and the billings,
|
|
cash receipts, and
related records to determine whether the
|
|
developer was
charged and paid the proper amounts of
|
|
assessments. This
paragraph applies to associations with a date
|
|
of incorporation
after December 31, 2007.
|
|
(5)(4) This
section applies to any mandatory homeowners'
|
|
association
existing under this chapter does
not apply to a
|
|
homeowners'
association in existence on the effective date of
|
|
this act, or to a
homeowners' association, no matter when
|
|
created, if such
association is created in a community that is
|
|
included in an
effective development-of-regional-impact
|
|
development order
as of the effective date of this act, together
|
|
with any approved
modifications thereof.
|
|
|
|
Section
9. Section 720.3071, Florida Statutes, is created
|
|
to read:
|
|
720.3071 Board
member training.--The division shall
|
|
provide training
programs for homeowners' association board
|
|
members, at the
associations' expense. Training shall be
|
|
mandatory for
newly elected board members and members
|
|
currently
serving on a board
who have not previously voluntarily
|
|
attended
training.
|
|
|
|
Section
10. Subsection (1) of section 720.3075, Florida
|
|
Statutes, is amended, and subsection
(5) is added to that
|
|
section, to read:
|
|
720.3075 Prohibited
clauses in association documents.--
|
|
(1) It
is declared that the public policy of this state
|
|
prohibits the inclusion or
enforcement of certain types of
|
|
clauses in homeowners' association
documents, including
|
|
declaration of covenants, articles of
incorporation, bylaws, or
|
|
any other document of the association
which binds members of
|
|
the
association, which either have the
effect of or provide that:
|
|
(a) A
developer has the unilateral ability and right to
|
|
make changes to the homeowners'
association documents after
|
|
the
transition of homeowners' association
control in a community
|
|
from the developer to the
nondeveloper members, as set forth in
|
|
s. 720.307, has occurred.
|
|
(b) A
homeowners' association is prohibited or restricted
|
|
from filing a lawsuit against the
developer, or the homeowners'
|
|
association is otherwise effectively
prohibited or restricted
|
|
from bringing a lawsuit against the
developer.
|
|
(c) After
the transition of homeowners' association
|
|
control in a community from the
developer to the nondeveloper
|
|
members, as set forth in s. 720.307,
has occurred, a developer
|
|
is entitled to cast votes in an
amount that exceeds one vote per
|
|
residential lot.
|
|
(d) The
homeowners' association is restricted or prevented
|
|
from functioning,
as provided by federal, state, and local laws
|
|
and specifically
by this chapter.
|
|
(e) The
homeowners' association is prevented from amending
|
|
any document as
allowed according to Florida statutes.
|
|
|
|
Such clauses are declared null and
void as against the public
|
|
policy of this state.
|
|
(5)(a) An
association may not restrict a homeowner from
|
|
mounting or
employing shutters or other hurricane protection.
|
|
(b) Except
as provided in paragraph (c), an association
|
|
may not restrict a
homeowner from mounting or employing
|
|
temporary
shutters or other hurricane protection during any
|
|
time
that a hurricane warning has been declared, during
|
|
any time
when an evacuation order has been given, or for
|
|
the following
period after conclusion of such hurricane watch or
|
|
evacuation order:
|
|
1. Seven
days; or
|
|
2. Fourteen
days if the hurricane watch concerns a
|
|
category 4 storm
or greater or if the evacuation order lasts
|
|
more than 3 days.
|
|
(c) If
a local government restricts homeowners' mounting
|
|
or employing
temporary or permanent shutters or other hurricane
|
|
protection, the
local government may also authorize associations
|
|
to adopt and
enforce equal or lesser restrictions.
|
|
(d) Except
as provided in paragraph (c) or paragraph (e),
|
|
an association may
not restrict a homeowner from mounting or
|
|
employing
permanent shutters or other hurricane protection
|
|
(e) An
association may not restrict the time or duration
|
|
for shutters or
other hurricane protection to be open or closed
|
|
during any period
of time.
|
|
|
|
Section
11. Section 720.3086, Florida Statutes, is amended
|
|
to read:
|
|
720.3086 Financial
report; audit; penalty; exclusivity of
|
|
properties.--
|
|
(1) In
a residential subdivision in which the owners of
|
|
lots or parcels must pay mandatory maintenance or
amenity fees
|
|
to the subdivision developer or to the owners of
the common
|
|
areas, recreational facilities, and other
properties serving the
|
|
lots or parcels, the developer or owner of such
areas,
|
|
facilities, or properties shall make public,
within 60 days
|
|
following the end of each fiscal year, a complete
financial
|
|
report of the actual, total receipts of mandatory
maintenance or
|
|
amenity fees received by it, and an itemized
listing of the
|
|
expenditures made by it from such fees, for that
year. Such
|
|
report shall be made public by mailing it to each
lot or parcel
|
|
owner in the subdivision, by publishing it in a
publication
|
|
regularly distributed within the subdivision, or
by posting it
|
|
in prominent locations in the subdivision. Thereafter,
the
|
|
developer or the owner of the
common areas, recreational
|
|
facilities, and other
properties serving the lots or parcels
|
|
shall mail the annual
financial report, upon written request
|
|
from a lot or parcel owner.
|
|
(2) Pursuant
to this section, if the developer or the
|
|
owner fails to provide the lot
or parcel owner with the
|
|
requested annual financial
report within 30 days of delivery of
|
|
such request to the developer
or owner, the circuit court
|
|
located in the same county as
the principal office of the
|
|
corporation, or its registered
office, if no office exists in
|
|
this state, summarily may
order the corporation to furnish such
|
|
financial report, upon
application of the lot or parcel owner.
|
|
If the court orders the
corporation to furnish the financial
|
|
report, it shall also order
the corporation to pay the lot or
|
|
parcel owner's costs,
including reasonable attorney's fees that
|
|
have been incurred to obtain
the order, and otherwise shall
|
|
enforce the lot or parcel
owner's rights under this section.
|
|
(3) Lot
or parcel owners shall have exclusive and vested
|
|
rights for the use of common
areas, recreational facilities, and
|
|
other properties serving the
lots or parcels unless they have
|
|
been dedicated for
nonexclusive use by the lot or parcel owners.
|
|
Portions of governing
documents that allow guests of the
|
|
developer or facility owner
the right to use the facility are
|
|
hereby declared void, as those
portions of governing documents
|
|
violate the rights to
exclusive use of the facilities by the lot
|
|
or parcel owners and their
guests.
|
|
(4) This
section does not apply to amounts paid to
|
|
homeowner associations pursuant to chapter
617, chapter 718,
|
|
chapter 719, chapter 721, or chapter 723, or to
amounts paid to
|
|
local governmental entities, including special
districts.
|
|
|
|
Section
12. Section
720.401, Florida Statutes, is amended
|
|
to read:
|
|
720.401 Prospective
purchasers subject to association
|
|
membership requirement; disclosure required;
covenants;
|
|
assessments; contract cancellation.--
|
|
(1)(a) A
prospective parcel owner in a community must be
|
|
presented a disclosure summary before executing
the contract for
|
|
sale. The disclosure summary must be in a form
substantially
|
|
similar to the following form:
|
|
|
|
DISCLOSURE SUMMARY
|
|
FOR
|
|
(NAME OF COMMUNITY)
|
|
|
|
1. AS A
PURCHASER OF PROPERTY IN THIS COMMUNITY, YOU WILL
|
|
BE OBLIGATED TO BE A MEMBER OF A HOMEOWNERS'
ASSOCIATION.
|
|
2. THE
PURCHASER HAS BEEN PROVIDED A COPY OF THE THERE
|
|
HAVE BEEN OR WILL BE
RECORDED RESTRICTIVE COVENANTS AND THE
|
|
ASSOCIATION GOVERNING DOCUMENTS RELATIVE TO
GOVERNING THE USE
|
|
AND OCCUPANCY OF PROPERTIES IN THIS COMMUNITY. AFFIRM
OR DENY
|
|
RECEIPT OR DOCUMENTS BY
CHECKING:
|
|
YES /box/ or NO /box/
|
|
3. YOU WILL
(OR WILL NOT) BE OBLIGATED TO PAY
ASSESSMENTS
|
|
TO THE ASSOCIATION. ASSESSMENTS ARE
MAY BE SUBJECT TO PERIODIC
|
|
CHANGE. IF APPLICABLE, THE CURRENT AMOUNT IS
$_____ PER _____.
|
|
IN ADDITION,
YOU WILL (OR
WILL NOT) ALSO BE OBLIGATED TO PAY ANY
|
|
SPECIAL ASSESSMENTS IMPOSED BY THE ASSOCIATION.
SUCH SPECIAL
|
|
ASSESSMENTS ARE
MAY BE SUBJECT TO CHANGE. IF
APPLICABLE, THE
|
|
CURRENT AMOUNT IS $_____ PER _____.
|
|
4. YOU WILL
MAY BE OBLIGATED TO PAY SPECIAL ASSESSMENTS
|
|
AND AD VALOREM TAXES AND
NON-AD VALOREM ASSESSMENTS TO THE
|
|
RESPECTIVE MUNICIPALITY, COUNTY, OR SPECIAL
DISTRICT. ALL
|
|
ASSESSMENTS AND TAXES
ARE SUBJECT TO PERIODIC CHANGE.
|
|
5. YOUR
FAILURE TO PAY SPECIAL ASSESSMENTS OR ASSESSMENTS
|
|
LEVIED BY A MANDATORY HOMEOWNERS' ASSOCIATION
COULD RESULT IN A
|
|
LIEN AND JUDICIAL
FORECLOSURE ON YOUR PROPERTY.
|
|
6. THERE
MAY BE AN OBLIGATION TO PAY RENT OR LAND USE FEES
|
|
FOR RECREATIONAL OR OTHER COMMONLY USED
FACILITIES AS AN
|
|
OBLIGATION OF MEMBERSHIP IN THE HOMEOWNERS'
ASSOCIATION. IF
|
|
APPLICABLE, THE CURRENT AMOUNT IS $_____ PER
_____.
|
|
7. THE
DEVELOPER HAS MAY
HAVE THE RIGHT TO AMEND THE
|
|
RESTRICTIVE COVENANTS WHILE
STILL IN CONTROL OF THE HOMEOWNERS'
|
|
ASSOCIATION
WITHOUT THE APPROVAL OF THE ASSOCIATION MEMBERSHIP
|
|
OR THE APPROVAL OF THE PARCEL OWNERS.
|
|
8. THE
STATEMENTS CONTAINED IN THIS DISCLOSURE FORM ARE
|
|
ONLY SUMMARY IN NATURE, AND, AS A
PROSPECTIVE PURCHASERS
|
|
PURCHASER,
YOU SHOULD REFER TO THE COVENANTS AND THE ASSOCIATION
|
|
GOVERNING DOCUMENTS BEFORE PURCHASING PROPERTY.
|
|
9. THESE
DOCUMENTS ARE EITHER MATTERS OF
PUBLIC RECORD AND
|
|
CAN BE OBTAINED FROM THE
RECORD OFFICE IN THE COUNTY WHERE THE
|
|
PROPERTY IS LOCATED, OR
ARE NOT RECORDED IN
TALLAHASSEE AND IN
|
|
THE COUNTY WHERE THE PROPERTY
IS LOCATED. A PENALTY SHALL BE
|
|
IMPOSED UPON THE DEVELOPER,
SELLER OR AGENT OF THE SELLER IF A
|
|
RECORDED COPY OF THE
RESTRICTIVE COVENANTS AND THE ASSOCIATION
|
|
GOVERNING DOCUMENTS ARE NOT
PROVIDED BEFORE CONTRACT FOR SALE
|
|
AND CAN BE OBTAINED FROM
THE DEVELOPER.
|
|
10. THE
PURCHASERS HAVE BEEN PROVIDED A COPY OF THE
|
|
RESTRICTIVE COVENANTS AND THE
ASSOCIATION GOVERNING DOCUMENTS
|
|
BEFORE CONTRACT FOR SALE.
AFFIRM OR DENY BY CHECKING
|
|
YES /box/ or NO /box/.
|
|
|
|
DATE:PURCHASER:
|
|
PURCHASER:
|
|
|
|
Full The
disclosure must be supplied by the developer, or by the
|
|
parcel owner if the sale is by an owner that is
not the
|
|
developer or the agent
for the owner. Any contract or agreement
|
|
for sale shall refer to and incorporate the
disclosure summary
|
|
and shall include, in prominent language, a
statement that the
|
|
potential buyer should not execute the contract
or agreement
|
|
until they have received and read the disclosure
summary,
|
|
recorded restrictive covenants
and governing documents of the
|
|
association,
required by this section.
|
|
(b) Each
contract entered into for the sale of property
|
|
with recorded
restrictive covenants governed by mandatory
|
|
homeowners' associations
covenants subject to disclosure
|
|
required by this section must contain in
conspicuous type a
|
|
clause that states:
|
|
|
|
IF THE DISCLOSURE SUMMARY AND
FULL DISCLOSURE OF THE RECORDED
|
|
RESTRICTIVE COVENANTS AND
GOVERNING DOCUMENTS OF THE
|
|
ASSOCIATION, REQUIRED
BY SECTION 720.401, FLORIDA STATUTES, HAVE
|
|
HAS NOT BEEN
PROVIDED TO THE PROSPECTIVE PURCHASER BEFORE
|
|
EXECUTING THIS CONTRACT FOR SALE, THIS CONTRACT
IS VOIDABLE BY
|
|
BUYER BY DELIVERING TO SELLER OR SELLER'S AGENT
OR
|
|
REPRESENTATIVE WRITTEN NOTICE OF THE BUYER'S
INTENTION TO CANCEL
|
|
WITHIN 10 3
DAYS AFTER RECEIPT OF THE FULL DISCLOSURE SUMMARY
OR
|
|
PRIOR TO CLOSING,
WHICHEVER OCCURS FIRST. ANY PURPORTED WAIVER
|
|
OF THIS VOIDABILITY RIGHT HAS NO EFFECT. BUYER'S
RIGHT TO VOID
|
|
THIS CONTRACT SHALL TERMINATE AT CLOSING.
|
|
(c) A
certified copy of the publicly recorded governing
|
|
documents must be provided to
any prospective purchaser, any
|
|
real estate agent, financial
institution, title or closing
|
|
company upon request.
|
|
(d) If
the developer or the association willfully and
|
|
knowingly fails to disclose
material facts that negatively
|
|
affect the value of the parcel
purchased by an association
|
|
member, the individual board
members or developer shall be held
|
|
liable under applicable
federal and state civil and criminal
|
|
statutes. (e)(c) If
the disclosure summary is not provided to a
|
|
prospective purchaser before the purchaser
executes a contract
|
|
for the sale of property governed by covenants
that are subject
|
|
to disclosure pursuant to this section, the
purchaser may void
|
|
the contract by delivering to the seller or the
seller's agent
|
|
or representative written notice canceling the
contract within 3
|
|
days after receipt of the disclosure summary or
prior to
|
|
closing, whichever occurs first. This right may
not be waived by
|
|
the purchaser but terminates at closing.
|
|
(2) This
section does not apply to any association
|
|
regulated under chapter 718, chapter 719, chapter
721, or
|
|
chapter 723 or to a
subdivider registered under chapter 498; and
|
|
also does not apply if disclosure regarding the
association is
|
|
otherwise made in connection with the
requirements of chapter
|
|
718, chapter 719, chapter 721, or chapter 723.
|
|
|
|
Section
13. Section
720.501, Florida Statutes, is created
|
|
to read:
|
|
720.501 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 property. In
performing its duties, the division
|
|
has 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.
|
|
(c) For
the purpose of any investigation under this
|
|
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 the
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 lot 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 any
|
|
developer, association,
officer, or member of the board of
|
|
administration, 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 of
|
|
administration, 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
homeowners' association.
|
|
3. The
division may bring an action in circuit court on
|
|
behalf of a class of lot
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 assignee or agent 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 hereto, 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,
2007, 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-controlled
|
|
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 residents
|
|
or other persons and that such
guidelines provide reasonable and
|
|
meaningful notice to the
public of likely penalties that may be
|
|
imposed for prescribed
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'
|
|
Association, 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
will 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 may prepare and disseminate a prospectus
|
|
and other information to
assist prospective owners, purchasers,
|
|
lessees, and developers of
residential communities in assessing
|
|
the rights, privileges, and
duties pertaining thereto.
|
|
(f) The
division may 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 considers the
|
|
issuance of a declaratory
statement with respect to the
|
|
declaration of restrictions or
any related document governing in
|
|
such residential 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 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 residential communities
|
|
which were rendered by the
division during the previous year.
|
|
(j) The
division shall provide training programs for
|
|
residential association board
members and lot owners.
|
|
(k) The
division shall maintain a toll-free telephone
|
|
number accessible to lot
owners.
|
|
(l) The
division shall develop a program to certify both
|
|
volunteer and paid mediators
to provide mediation of disputes.
|
|
The division shall provide,
upon request, a list of such
|
|
mediators to any association,
lot owner, or other participant in
|
|
arbitration proceedings under
s. 720.311 requesting a copy of
|
|
the list. The division shall
include on the list of volunteer
|
|
mediators only the names of
persons who have received at least
|
|
20 hours of training in
mediation techniques or who 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.
|
|
(m) When
a complaint is made, the division shall conduct
|
|
its inquiry 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
the division needs additional
|
|
information from the
complainant. The division shall conduct its
|
|
investigation and shall take
action upon the complaint within 90
|
|
days after receipt of the
original complaint or of timely
|
|
requested additional
information. However, 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.
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|
(2) Effective
January 1, 2009, each homeowners'
|
|
association that administers
more than 10 residential homes
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|
shall pay to the division an
annual fee in the amount of $4 for
|
|
each residence in communities
administered by the association.
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|
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 will not have
standing to maintain or defend any
|
|
action in the courts of this
state until the amount due, plus
|
|
any penalty that is paid. All
fees shall be deposited in the
|
|
Division of Florida Land
Sales, Condominiums, Homeowners'
|
|
Association, and Mobile Homes
Trust Fund as provided by law.
|
|
(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. One-fifth of all fees |
|
deposited by the division shall be allocated and transferred to |
|
the Office of the
Homeowners' Association Ombudsman. |
|
|
|
Section
14. Section 720.5011, Florida Statutes, is created
|
|
to read:
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|
720.5011 Ombudsman;
appointment; administration.--
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|
(1) There
is created an Office of the Homeowners' Association
|
|
Ombudsman, to be located,
solely for administrative purposes,
|
|
within the Division of
Florida Land Sales, Condominiums,
|
|
Homeowners'
Associations, and Mobile Homes. The
ombudsman shall
|
|
exercise
his or her policymaking and other functions delegated
|
|
by this
chapter independently of the Department of Business and
|
|
Professional
Regulation and without approval or control of the
|
|
department.
The department shall render administrative support
|
|
to the
Office of the Homeowners' Association Ombudsman in matters
|
|
pertaining
to
budget, personnel, office space, equipment, and supplies.
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|
All
revenues
collected for the office by the department shall be
|
|
deposited
in a separate fund or account from which the
|
|
department
may not use or divert the revenues. The functions of
|
|
the office shall be funded
by the Division of Florida Land
|
|
Sales, Condominiums,
Homeowners'
Associations, and Mobile Homes
|
|
Trust Fund. The ombudsman
shall be a bureau chief of the
|
|
division, and the office
shall be set within the division in the
|
|
same manner as any other
bureau is staffed and funded.
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|
(2) The
Governor shall appoint the ombudsman. The
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|
ombudsman must be an
attorney admitted to practice before the
|
|
Florida Supreme Court and
shall serve at the pleasure of the
|
|
Governor. A vacancy in the
office shall be filled in the same
|
|
manner as the original
appointment.
|
|
|
|
Section
15. Section 720.5012, Florida Statutes, is created
|
|
to read:
|
|
720.5012 Ombudsman;
powers and duties.--
|
|
(1) The
ombudsman shall have the powers that are necessary
|
|
to carry out the duties of
his or her office, including the
|
|
following specific powers:
|
|
(a) To
have access to and use of all files and records
|
|
of the division.
|
|
(b) To
employ professional and clerical staff as
|
|
necessary for the efficient
operation of the office.
|
|
(c) To
prepare and issue reports and recommendations to
|
|
the Governor, the
department, the division, the Advisory Council
|
|
on
Mandated Properties, the
President of the Senate, and the
|
|
Speaker of
the House of Representatives
on any matter or subject
|
|
within the
jurisdiction of the
division. The ombudsman shall make
|
|
recommendations he or she
deems appropriate for legislation
|
|
relative to division
procedures, rules, jurisdiction, personnel,
|
|
and functions.
|
|
(d) To
act as liaison between the division, unit
|
|
owners, boards of directors,
board members, community
|
|
association managers, and
other affected parties. The ombudsman
|
|
shall
assist unit owners, boards of directors, board
members,
|
|
community association
managers, and other affected
parties
|
|
to understand their rights
and responsibilities as set
forth
|
|
in this chapter and the
association's documents
governing
|
|
their respective association.
The ombudsman shall
coordinate
|
|
and assist in the preparation and
adoption of educational and
|
|
reference material, and shall endeavor to coordinate with
|
|
private or volunteer providers of these services, so that the
|
|
availability of these resources is made known to the largest
|
|
possible audience.
|
|
(e) To
monitor and review procedures and disputes
|
|
concerning
homeowners' association elections or meetings,
|
|
including, but not
limited to, recommending
that the division pursue
|
|
enforcement
action in any manner where
there is reasonable cause
|
|
to believe
that election misconduct has
occurred. The division shall
|
|
process
the ombudsman's recommendations and petitions in an
|
|
expedited
manner and defer to his or her findings. For the
|
|
purpose
of fulfilling his or her duties under this chapter, the
|
|
ombudsman
may administer oaths or affirmations, subpoena
|
|
witnesses
and compel their attendance, take evidence, and
|
|
require
the production of any matter that is relevant to the
|
|
inquiry,
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
|
|
the
failure by a person to obey a subpoena or to answer
|
|
questions
asked by the ombudsman and upon reasonable notice to
|
|
all
persons affected thereby, the ombudsman may apply to the
|
|
circuit
court for an order compelling compliance.
|
|
(f) To
make recommendations to the division for changes
|
|
in rules and procedures for
the filing, investigation, and
|
|
resolution of complaints
filed by unit owners, associations, and
|
|
managers.
|
|
(g) To
provide resources to assist members of boards of
|
|
directors and officers of
associations to carry out their powers
|
|
and duties consistent with
this chapter, division rules, and the
|
|
condominium documents
governing the association.
|
|
(h) To
order, encourage,
and facilitate meetings with
|
|
and between
unit owners, boards of directors, board
|
|
members, community
association managers, and other
|
|
affected parties when the
meetings may assist in resolving a
|
|
dispute within a community
association before a person submits a
|
|
dispute for a formal or
administrative remedy. It is the intent
|
|
of the Legislature that the
ombudsman act as a neutral resource
|
|
for both the rights and
responsibilities of unit owners,
|
|
associations, and board
members.
|
|
(i) To
make recommendations to the division to pursue
|
|
enforcement
action in circuit court on behalf of a class of unit
|
|
owners,
lessees, or purchasers for declaratory relief,
|
|
injunctive
relief, or restitution against any developer,
|
|
association,
officer, or member of the board of administration,
|
|
or its
assignees or agents, where there is reasonable cause to
|
|
believe
misconduct has occurred. The division shall process the
|
|
ombudsman's
recommendations and petitions in an expedited manner
|
|
and defer
to his or her findings.
|
|
(2) Fifteen
percent of the total voting interests in a homeowners'
|
|
association, or
six unit owners, whichever is greater, may
|
|
petition the
ombudsman to appoint an election monitor
|
|
to attend the annual
meeting of the unit owners and
|
|
conduct the election of
directors. The ombudsman upon petition
|
|
may order
any aspect of the election process as set forth in s.
|
|
720.306(9).
to be conducted by the election monitor. No
|
|
association
or person may reject an election monitor appointed
|
|
by the
ombudsman or interfere with an election monitor in the
|
|
performance
of his or her duties. The ombudsman may order an
|
|
association
to implement a known division remedy for a
|
|
procedural
violation of s. 720.306(9) prior to and during a
|
|
monitored
election. The ombudsman shall appoint a division
|
|
employee, a person or
persons specializing in condominium
|
|
election monitoring, or an
attorney licensed to practice in this
|
|
state as the election
monitor. All costs associated with the
|
|
election monitoring process
shall be paid by the association.
|
|
The division shall adopt a
rule establishing procedures for the
|
|
appointment of election
monitors and the scope and extent of the
|
|
monitor's role in the
election process.
|
|
(3) Any
owner or association acting in good faith on
|
|
the
advice or opinion of the office of the ombudsman shall be
|
|
immune
from any penalties or actions.
|
|
(4) If
the ombudsman has reasonable cause to believe that
|
|
a
violation of any provision of this chapter or rule adopted
|
|
under
this chapter has occurred, the ombudsman may issue an
|
|
order
requiring any developer, association, officer, or member
|
|
of the
board of administration, or its assignees or agents, to
|
|
cease and
desist from the unlawful practice and to take such
|
|
affirmative
action that will carry out the purposes of this
|
|
chapter.
|
|
|
|
|
Section
16. Section
720.505, Florida Statutes, is created
|
|
to read:
|
|
720.505 Advisory
council; membership functions.--
|
|
(1) There
is created the Advisory Council On Mandated
|
|
Properties. The council shall
consist of seven appointed
|
|
members. Two members shall be
appointed by the President of the
|
|
Senate, two members shall be
appointed by the Speaker of the
|
|
House of Representatives, and
three members shall be appointed
|
|
by the Governor. At least one
member that is appointed by the
|
|
Governor, by the Senate
President and by the Speaker of the
|
|
House shall be a homeowners'
rights advocate and parcel owner.
|
|
Members shall be appointed to
2-year terms; however, one of the
|
|
persons initially appointed by
the Governor, by the President of
|
|
the Senate, and by the Speaker
of the House of Representatives
|
|
shall be appointed to a 1-year
term. A member of the division,
|
|
appointed by the Secretary,
shall serve as an ex-officio
|
|
nonvoting member. The
selection of council members shall be made
|
|
in a manner that ensures a
fair and balanced representation from
|
|
the service-provider sector
and consumer advocates with a
|
|
substantial public record of
endeavors on behalf of homeowners'
|
|
rights and consumer interests.
The council shall be located
|
|
within the division for
administrative purposes. Members of the
|
|
council shall serve without
compensation but are entitled to
|
|
receive per diem and travel
expenses pursuant to s. 112.061
|
|
while on official business. A
vacancy on the Advisory Council
|
|
shall be filled in the same
manner as the original appointment.
|
|
(2) The
functions of the advisory council shall be to:
|
|
(a) Receive,
from the public, input regarding issues of
|
|
concern with respect to
mandated communities and recommendations
|
|
for changes in homeowners'
association laws. The issues that the
|
|
council shall consider
include, but are not limited to, the
|
|
rights and responsibilities of
the parcel owners in relation to
|
|
the rights and
responsibilities of the association.
|
|
(b) Review,
evaluate, and advise the division concerning
|
|
revisions and adoption of
rules affecting homeowners'
|
|
associations.
|
|
(c) Recommend
improvements, if needed, in the education
|
|
programs offered by the
division.
|
|
(3) The
council may elect a chair and vice chair and such
|
|
other officers as it may deem
advisable. The council shall meet
|
|
at the call of its chair, at
the request of a majority of its
|
|
membership, at the request of
the division, or at such times as
|
|
it may prescribe. A majority
of the members of the council shall
|
|
constitute a quorum. Council
action may be taken by vote of a
|
|
majority of the voting members
who are present at a meeting
|
|
where there is a quorum.
|