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A bill to be entitled 1
An act relating to homeowners' associations; amending 2
s. 720.305, F.S.; requiring the board of 3
administration to provide written notice of the 4
opportunity for certain hearings to certain persons; 5
requiring certain hearings to be held within a 6
specified time after certain persons receive a written 7
request for such hearing; providing how a written 8
request may be provided to certain persons; 9
authorizing certain persons to attend the hearing in 10
certain ways; authorizing a fine and suspension 11
committee to reduce a fine or suspension levied by the 12
board; requiring the association to provide written 13
notice by electronic transmission to parcel owners of 14
the fine and suspension committee's decision; 15
providing an appeals process for certain fines and 16
suspensions; requiring an appeal to be heard before a 17
committee within a specified time after certain 18
persons receive written notice of the appeal; 19
providing how written notice of an appeal may be 20
provided to certain persons; providing for the 21
composition of an appeals com mittee; authorizing 22
certain persons to attend the appeals committee; 23
providing the ways that such persons may attend; 24
specifying the role of the appeals committee; 25
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specifying when a fine or suspension may not be 26
imposed; requiring the appeals committee to reduce the 27
fine or suspension by a specified percentage under 28
certain circumstances; requiring the association to 29
provide written notice, in specified ways, to certain 30
persons of the decision of the appeals committee; 31
specifying when payment of a fine that is appealed is 32
due; amending s. 720.311, F.S.; authorizing parties to 33
initiate nonbinding arbitration rather than presuit 34
mediation for certain disputes; creating s. 720.319, 35
F.S.; creating the Office of the Homeowners' 36
Association Ombudsman within the De partment of 37
Business and Professional Regulation; providing for 38
funding of the office; directing the Governor to 39
appoint the ombudsman; requiring the ombudsman to be 40
an attorney; prohibiting the ombudsman, officers, and 41
full-time employees from holding cer tain positions, 42
engaging in certain activities, or receiving certain 43
remuneration; providing for the principal location of 44
the ombudsman's office; authorizing the ombudsman to 45
establish branch offices under specified 46
circumstances; providing for the powers and duties of 47
the ombudsman; providing for the administration of an 48
election monitoring process; requiring the Division of 49
Florida Condominiums, Timeshares, and Mobile Homes to 50
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adopt certain rules; providing an effective date. 51
52
Be It Enacted by the Le gislature of the State of Florida: 53
54
Section 1. Paragraph (b) of subsection (2) of section 55
720.305, Florida Statutes, is amended to read: 56
720.305 Obligations of members; remedies at law or in 57
equity; levy of fines and suspension of use rights. — 58
(2) An association may levy reasonable fines. A fine may 59
not exceed $100 per violation against any member or any member's 60
tenant, guest, or invitee for the failure of the owner of the 61
parcel or its occupant, licensee, or invitee to comply with any 62
provision of the declaration, the association bylaws, or 63
reasonable rules of the association unless otherwise provided in 64
the governing documents. A fine may be levied by the board for 65
each day of a continuing violation, with a single notice and 66
opportunity for hearin g, except that the fine may not exceed 67
$1,000 in the aggregate unless otherwise provided in the 68
governing documents. A fine of less than $1,000 may not become a 69
lien against a parcel. In any action to recover a fine, the 70
prevailing party is entitled to rea sonable attorney fees and 71
costs from the nonprevailing party as determined by the court. 72
(b)1. A fine or suspension levied by the board of 73
administration may not be imposed unless the board first 74
provides at least 14 days' notice to the parcel owner and, if 75
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applicable, any occupant, licensee, or invitee of the parcel 76
owner, sought to be fined or suspended , and provides written 77
notice of an opportunity for a hearing before a fine and 78
suspension committee of at least three members appointed by the 79
board who are not officers, directors, or employees of the 80
association, or the spouse, parent, child, brother, or sister of 81
an officer, director, or employee. The hearing must be conducted 82
within 14 days after the board of administration receives a 83
written request for a hearing by the parcel owner or the 84
occupant, licensee, or invitee of the parcel owner sought to be 85
fined or suspended, unless the parcel owner or the occupant, 86
licensee, or invitee of the parcel owner sought to be fined or 87
suspended requests a later date in writing. The request must be 88
made by United States mail, hand delivery, or e -mail to the 89
board, a manager, the fine and suspension committee, or a 90
designated officer. The parcel owner, occupant, licensee, or 91
invitee sought to be fined or suspended has a right to appear 92
before the fine and suspension committee and may do so in person 93
or by telephone, real -time videoconferencing, or similar real -94
time electronic or video communication. If the fine and 95
suspension committee, by majority vote, does not ap prove or 96
reduce a proposed fine or suspension, the proposed fine or 97
suspension may not be imposed. The role of the fine and 98
suspension committee is limited to determining whether to 99
confirm, or reject, or reduce the fine or suspension levied by 100
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the board. If the proposed fine or suspension levied by the 101
board is approved by the fine and suspension committee, the fine 102
payment is due 5 days after notice of the approved fine is 103
provided to the parcel owner and, if applicable, to any 104
occupant, licensee, or invi tee of the parcel owner. The 105
association must provide written notice of such fine or 106
suspension by United States mail or hand delivery to the parcel 107
owner and, if applicable, to any occupant, licensee, or invitee 108
of the parcel owner. The association must a lso provide the 109
written notice by electronic transmission to the parcel owner's 110
e-mail address, if the parcel owner's e -mail address is 111
maintained in the association's official records. 112
2. Within 3 days after receiving written notice that the 113
fine or suspension was approved by the fine and suspension 114
committee, a parcel owner or, if applicable, the occupant, 115
licensee, or invitee of the parcel owner, who is fined or 116
suspended, may appeal the fine or suspension by providing 117
written notice of such appeal to the board, a manager, the fine 118
and suspension committee, or a designated officer by United 119
States mail, hand delivery, or e -mail. 120
3. An association must give a parcel owner or, if 121
applicable, any occupant, licensee, or invitee of the parcel 122
owner, who appeals a fine or suspension, an opportunity for a 123
hearing before an appeals committee made up of at least five 124
members appointed by the board who are not officers, directors, 125
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employees of the association, or members of the fine and 126
suspension committee, or the spouse, parent, child, brother, or 127
sister of an officer, director, employee, or member of the fine 128
and suspension committee. The parcel owner or the occupant, 129
licensee, or invitee of the parcel owner fined or suspended has 130
a right to appear before the appeals committee and may do so in 131
person or by telephone, real -time videoconferencing, or similar 132
real-time electronic or video communication. The role of the 133
appeals committee is limited to determining whether to confirm, 134
reject, or reduce the fine or su spension levied by the board and 135
confirmed by the fine and suspension committee. If the appeals 136
committee, by majority vote, does not approve or reduce the fine 137
or suspension, the fine or suspension may not be imposed. If the 138
violation that resulted in the fine or suspension is corrected 139
before the hearing, the appeals committee must reduce the fine 140
or suspension by at least 50 percent. The association must 141
provide written notice of the appeals committee's decision by 142
United States mail or hand delivery to the parcel owner and, if 143
applicable, to the occupant, licensee, or invitee of the parcel 144
owner who received the fine or suspension. The association must 145
also provide the written notice by electronic transmission to 146
the parcel owner's e -mail address, if the parcel owner's e-mail 147
address is maintained in the association's official records. 148
Payment of a fine that is appealed in compliance with this 149
paragraph is due 5 days after notice of the appeals committee's 150
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decision is provided to the parcel owner and, if applicable, to 151
the occupant, licensee, or invitee of the parcel owner. 152
Section 2. Paragraph (a) of subsection (2) of section 153
720.311, Florida Statutes, is amended and subsection (3) is 154
added to that section to read: 155
720.311 Dispute resolution. — 156
(2)(a) Disputes between an association and a parcel owner 157
regarding use of or changes to the parcel or the common areas 158
and other covenant enforcement disputes, disputes regarding 159
amendments to the association documents, disputes regarding 160
meetings of the board and committees appointed by the board, 161
membership meetings not including election meetings, and access 162
to the official records of the association must shall be the 163
subject of a demand for presuit mediation served by an aggrieved 164
party or a petition for nonbinding arbitration as provided in 165
subsection (3) before the dispute is filed in court. Presuit 166
mediation proceedings must be conducted in accordance with the 167
applicable Florida Rules of Civil Procedure, and these 168
proceedings are privileged and confiden tial to the same extent 169
as court-ordered mediation. Disputes subject to presuit 170
mediation under this section may shall not include the 171
collection of any assessment, fine, or other financial 172
obligation, including attorney attorney's fees and costs, 173
claimed to be due or any action to enforce a prior mediation 174
settlement agreement between the parties. Also, in any dispute 175
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subject to presuit mediation under this section where emergency 176
relief is required, a motion for temporary injunctive relief may 177
be filed with the court without first complying with the presuit 178
mediation requirements of this section. After any issues 179
regarding emergency or temporary relief are resolved, the court 180
may either refer the parties to a mediation program administered 181
by the courts or require mediation under this section. An 182
arbitrator or judge may not consider any information or evidence 183
arising from the presuit mediation proceeding except in a 184
proceeding to impose sanctions for failure to attend a presuit 185
mediation session or to enfo rce a mediated settlement agreement. 186
Persons who are not parties to the dispute may not attend the 187
presuit mediation conference without the consent of all parties, 188
except for counsel for the parties and a corporate 189
representative designated by the associat ion. When mediation is 190
attended by a quorum of the board, such mediation is not a board 191
meeting for purposes of notice and participation set forth in s. 192
720.303. An aggrieved party must shall serve on the responding 193
party a written demand to participate in presuit mediation in 194
substantially the following form: 195
STATUTORY OFFER TO PARTICIPATE 196
IN PRESUIT MEDIATION 197
The alleged aggrieved party, ................, hereby demands 198
that ................, as the responding party, engage in 199
mandatory presuit mediation in connection with the following 200
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disputes, which by statute are of a type that are subject to 201
presuit mediation: 202
(List specific nature of the dispute or disputes to be mediated 203
and the authority supporting a finding of a violation as to each 204
dispute.) 205
Pursuant to section 720.311, Florida Statutes, this demand to 206
resolve the dispute through presuit mediation is required before 207
a lawsuit can be filed concerning the dispute. Pursuant to the 208
statute, the parties are required to engage in presuit mediation 209
with a neutral third-party mediator in order to attempt to 210
resolve this dispute without court action, and the aggrieved 211
party demands that you likewise agree to this process. If you 212
fail to participate in the mediation process, suit may be 213
brought against you without further warning. 214
The process of mediation involves a supervised negotiation 215
process in which a trained, neutral third -party mediator meets 216
with both parties and assists them in exploring possible 217
opportunities for resolving part or all of the di spute. By 218
agreeing to participate in presuit mediation, you are not bound 219
in any way to change your position. Furthermore, the mediator 220
has no authority to make any decisions in this matter or to 221
determine who is right or wrong and merely acts as a facilit ator 222
to ensure that each party understands the position of the other 223
party and that all options for reasonable settlement are fully 224
explored. 225
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If an agreement is reached, it shall be reduced to writing and 226
becomes a binding and enforceable commitment of the parties. A 227
resolution of one or more disputes in this fashion avoids the 228
need to litigate these issues in court. The failure to reach an 229
agreement, or the failure of a party to participate in the 230
process, results in the mediator declaring an impasse in th e 231
mediation, after which the aggrieved party may proceed to court 232
on all outstanding, unsettled disputes. If you have failed or 233
refused to participate in the entire mediation process, you will 234
not be entitled to recover attorney attorney's fees, even if you 235
prevail. 236
The aggrieved party has selected and hereby lists five certified 237
mediators who we believe to be neutral and qualified to mediate 238
the dispute. You have the right to select any one of these 239
mediators. The fact that one party may be familiar with o ne or 240
more of the listed mediators does not mean that the mediator 241
cannot act as a neutral and impartial facilitator. Any mediator 242
who cannot act in this capacity is required ethically to decline 243
to accept engagement. The mediators that we suggest, and the ir 244
current hourly rates, are as follows: 245
(List the names, addresses, telephone numbers, and hourly rates 246
of the mediators. Other pertinent information about the 247
background of the mediators may be included as an attachment.) 248
You may contact the offices of t hese mediators to confirm that 249
the listed mediators will be neutral and will not show any 250
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favoritism toward either party. The Florida Supreme Court can 251
provide you a list of certified mediators. 252
Unless otherwise agreed by the parties, section 720.311(2)(b) , 253
Florida Statutes, requires that the parties share the costs of 254
presuit mediation equally, including the fee charged by the 255
mediator. An average mediation may require three to four hours 256
of the mediator's time, including some preparation time, and the 257
parties would need to share equally the mediator's fees as well 258
as their own attorney attorney's fees if they choose to employ 259
an attorney in connection with the mediation. However, use of an 260
attorney is not required and is at the option of each party. The 261
mediators may require the advance payment of some or all of the 262
anticipated fees. The aggrieved party hereby agrees to pay or 263
prepay one-half of the mediator's estimated fees and to forward 264
this amount or such other reasonable advance deposits as the 265
mediator requires for this purpose. Any funds deposited will be 266
returned to you if these are in excess of your share of the fees 267
incurred. 268
To begin your participation in presuit mediation to try to 269
resolve the dispute and avoid further legal action, please sign 270
below and clearly indicate which mediator is acceptable to you. 271
We will then ask the mediator to schedule a mutually convenient 272
time and place for the mediation conference to be held. The 273
mediation conference must be held within ninety (90) days after 274
of this date, unless extended by mutual written agreement. In 275
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the event that you fail to respond within 20 days after from the 276
date of this letter, or if you fail to agree to at least one of 277
the mediators that we have suggested or to pay or prepay to the 278
mediator one-half of the costs involved, the aggrieved party 279
will be authorized to proceed with the filing of a lawsuit 280
against you without further notice and may seek an award of 281
attorney attorney's fees or costs incurred in attempting to 282
obtain mediation. 283
Therefore, please give this matter your immediate attention. By 284
law, your response must be mailed by certified mail, return 285
receipt requested, and by first -class mail to the address shown 286
on this demand. 287
........................ 288
........................ 289
RESPONDING PARTY: YOUR SIGNATURE INDICATES YOUR AGREEMENT TO 290
THAT CHOICE. 291
AGREEMENT TO MEDIATE 292
The undersigned hereby agrees to participate in presuit 293
mediation and agrees to attend a mediation conducted by the 294
following mediator or mediators who are listed abov e as someone 295
who would be acceptable to mediate this dispute: 296
(List acceptable mediator or mediators.) 297
I/we further agree to pay or prepay one -half of the mediator's 298
fees and to forward such advance deposits as the mediator may 299
require for this purpose. 300
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........................ 301
Signature of responding party #1 302
........................ 303
Telephone contact information 304
........................ 305
Signature and telephone contact information of responding party 306
#2 (if applicable)(if property is owned by more than one person, 307
all owners must sign) 308
(3) In lieu of initiating presuit mediation under this 309
section, an aggrieved party may submit a dispute subject to 310
presuit mediation under subsection (2) to nonbinding arbitration 311
in accordance with s. 718.1255. 312
Section 3. Section 720.319, Florida Statutes, is created 313
to read: 314
720.319 Homeowners' association ombudsman. — 315
(1) ADMINISTRATION; APPOINTMENT; LOCATION. — 316
(a) There is created an Office of the Homeowners' 317
Association Ombudsman to be located, for administrative 318
purposes, within the Department of Business and Professional 319
Regulation. The functions of the office shall be funded by the 320
General Appropriations Act. 321
(b) The Governor shall appoint the ombudsman. The 322
ombudsman must be an attorney admitte d to practice before the 323
Florida Supreme Court and shall serve at the pleasure of the 324
Governor. The ombudsman, an officer, or a full -time employee of 325
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the ombudsman's office may not actively engage in any other 326
business or profession that directly or indire ctly relates to or 327
conflicts with his or her work in the ombudsman's office; serve 328
as the representative or an executive, officer, or employee of 329
any political party, executive committee, or other governing 330
body of a political party; receive remuneration f or activities 331
on behalf of any candidate for public office; or engage in 332
soliciting votes or other activities on behalf of a candidate 333
for public office. The ombudsman, an officer, or a full -time 334
employee of the ombudsman's office may not become a candidat e 335
for election to public office unless he or she first resigns 336
from his or her office or employment. 337
(c) The ombudsman shall maintain his or her principal 338
office at a place convenient to the department, which will 339
enable the ombudsman to expeditiously carry out the duties and 340
functions of his or her office. The ombudsman may establish 341
branch offices elsewhere in the state upon the concurrence of 342
the Governor. 343
(2) POWERS AND DUTIES. —The ombudsman has the powers 344
necessary to carry out the duties of his or her office, 345
including, but not limited to: 346
(a) Employing professional and clerical staff as necessary 347
for the efficient operation of the office. 348
(b) Preparing and issuing reports and recommendations to 349
the Governor, the department, the President of the Senate, and 350
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the Speaker of the House of Representatives on any matter or 351
subject within the jurisdiction of this chapter. 352
(c) Acting as a liaison between the department, parcel 353
owners, boards of directors, board members, community 354
association managers, and other affected parties. The ombudsman 355
shall develop policies and procedures to assist parcel owners, 356
boards of directors, board members, community association 357
managers, and other affected parties to understand their rights 358
and responsibilities, as s et forth in this chapter, and the 359
governing documents that govern their respective associations. 360
The ombudsman shall coordinate and assist in the preparation and 361
adoption of educational and reference material, and shall 362
endeavor to coordinate with private or volunteer providers of 363
these services, so that the availability of these resources is 364
made known to the largest possible audience. 365
(d) Monitoring and reviewing procedures and disputes 366
concerning elections or meetings. 367
(e) Providing resources to assi st members of boards of 368
directors and officers of associations to carry out their powers 369
and duties consistent with this chapter and the governing 370
documents that govern the association. 371
(f) Encouraging and facilitating voluntary meetings 372
between parcel owners, boards of directors, board members, 373
community association managers, and other affected parties when 374
the meetings may assist in resolving a dispute within a 375
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homeowners' association before a person submits a dispute for a 376
formal or administrative reme dy. It is the intent of the 377
Legislature that the ombudsman act as a neutral resource for 378
both the rights and responsibilities of parcel owners, 379
associations, and board members. 380
(g) Assisting with the resolution of disputes between 381
parcel owners and the a ssociation, or between parcel owners, if 382
applicable. 383
(3) ELECTION MONITORING. — 384
(a) Fifteen percent of the total voting interests in a 385
homeowners' association, or six parcel owners, whichever is 386
greater, may petition the ombudsman to appoint an election 387
monitor to attend the annual meeting of the parcel owners and 388
conduct the election of directors. 389
(b) The ombudsman shall appoint a division employee, a 390
person who specializes in homeowners' association election 391
monitoring, or an attorney licensed to pra ctice in the state as 392
the election monitor. 393
(c) The association must pay all costs associated with the 394
election monitoring process. 395
(d) The division shall adopt a rule establishing 396
procedures for the appointment of election monitors and the 397
scope and extent of the monitor's role in the election process. 398
Section 4. This act shall take effect July 1, 2022. 399