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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
A bill to be entitled 1
An act relating to community associations; providing a 2
short title; amending s. 718.111, F.S.; prohibiting 3
association funds and reserves from being used by 4
specified persons or entities for certain reasons; 5
requiring the board of each association to desig nate 6
an official recordkeeper for the association; 7
authorizing the board to provide powers and duties to 8
the recordkeeper if necessary; removing obsolete 9
language; requiring certain information be posted on 10
the association's website or application and the 11
Department of State's website; amending ss. 718.1224 12
and 720.304, F.S.; prohibiting reserves from being 13
used in prosecuting SLAPP suits; amending ss. 718.501 14
and 720.302, F.S.; providing the Division of Florida 15
Condominiums, Timeshares, and Mobile Homes wi th 16
certain jurisdiction; requiring the division to 17
forward certain complaints to the Department of Law 18
Enforcement; requiring the division to review 19
complaints within a specified timeframe and take 20
specified actions; amending s. 720.303, F.S.; 21
providing criminal penalties for certain actions by an 22
officer, director, or agent of the association; 23
requiring certain officers or directors be removed 24
from office for a certain time period under certain 25
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circumstances; specifying how a vacancy on the board 26
must be filled; providing restrictions on certain 27
officers and directors; specifying when an officer or 28
director may be reinstated; requiring the governing 29
documents of an association be amended in order to 30
modify or restrict parcel use; requiring an 31
association to maintain designated mailing and e -mail 32
addresses as official records; specifying what 33
constitutes a designated address; making conforming 34
changes; requiring the board of each association to 35
designate an official recordkeeper for the 36
association; authorizi ng the board to provide powers 37
and duties to the recordkeeper if necessary; requiring 38
certain information be posted on the association's and 39
the Department of State's websites; revising the 40
confidentiality of certain official records; 41
conforming cross-references; prohibiting association 42
funds and reserves from being used by specified 43
persons or entities for certain reasons; amending s. 44
720.305, F.S.; restricting certain attorney fees and 45
fines; specifying the types of violations for which an 46
association may levy fines; providing a maximum fine 47
amount; prohibiting fines from being aggregated; 48
revising amount of notice the board of administration 49
must give a parcel owner before imposing a fine or 50
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suspension; specifying where such notice must be 51
delivered; providing requirements for such notice; 52
authorizing parcel owners to attend certain hearings 53
by telephone or other electronic means; expanding 54
duties of a specified committee; requiring a specified 55
notice after a hearing; specifying how fines, 56
suspensions, attorney fees, and costs are determined; 57
requiring a detailed accounting of amounts due to the 58
association be given to certain persons within a 59
certain timeframe upon written request; providing for 60
a complete waiver of a violation under certain 61
circumstances; specifying the priority of payments 62
made by a parcel owner to an association; prohibiting 63
the accrual of attorney fees and costs after a 64
specified time; authorizing certain persons to request 65
a hearing to dispute certain fees and costs; providing 66
for the waiver of certain fines or suspensions; 67
requiring certain fines, fees, or other costs be paid 68
by an association; conforming provisions to changes 69
made by the act; amending s. 720.306, F.S.; requiring 70
that the governing documents of an association be 71
amended to modify or restrict parcel use; amending s. 72
720.3085, F.S.; specifying the priority of payments 73
made by a parcel owner to an association; prohibiting 74
an association from bringing an action to foreclose a 75
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lien against a parcel; providing that such lien stays 76
on the parcel until the lien is paid, settled, or 77
released; requiring a certain actions be brought in 78
the same lawsuit; conforming cross -references; 79
amending s. 720.311, F.S.; providing the division with 80
certain jurisdiction; requiring the division t o 81
forward certain complaints to the Department of Law 82
Enforcement; requiring the division to review 83
complaints within a specified timeframe and take 84
specified actions; revising which disputes require 85
presuit mediation; revising the timeframe for a 86
responding party to respond to a demand for presuit 87
mediation; amending s. 720.402, F.S.; prohibiting 88
reserve funds from being used in the defense of 89
certain actions; creating s. 943.71, F.S.; authorizing 90
the Department of Law Enforcement to investigate 91
certain complaints relating to community associations 92
and their boards of administration, officers, or 93
directors; providing an effective date. 94
95
Be It Enacted by the Legislature of the State of Florida: 96
97
Section 1. This act may be cited as the "Community 98
Associations Bill of Rights." 99
Section 2. Paragraphs (b) and (g) of subsection (12) of 100
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section 718.111, Florida Statutes, are amended and paragraph (g) 101
is added to subsection (3) of that section, to read: 102
718.111 The association. — 103
(3) POWER TO MANAGE CO NDOMINIUM PROPERTY AND TO CONTRACT, 104
SUE, AND BE SUED; CONFLICT OF INTEREST. — 105
(g) Association funds and reserve funds may not be used by 106
a developer, the association, or elected board members to defend 107
a civil or criminal action, an administrative proceed ing, or an 108
arbitration proceeding or to pay for attorney fees relating to 109
such action or proceeding, even when the subject of the action 110
or proceeding concerns the operation of the developer -controlled 111
association. 112
(12) OFFICIAL RECORDS. — 113
(b)1. The board of each community association shall 114
appoint an association member as a recordkeeper whose 115
responsibility is to maintain the official records of the 116
association during the time period of his or her appointment. 117
The board must specify the duration of such appointment and may 118
grant the recordkeeper additional authority as needed. The name 119
and contact information of the recordkeeper must be displayed on 120
the association's website or application as required under 121
paragraph (g) and the Department of State websi te. 122
2. The official records specified in subparagraphs (a)1. -123
6. must be permanently maintained from the inception of the 124
association. Bids for work to be performed or for materials, 125
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equipment, or services must be maintained for at least 1 year 126
after receipt of the bid. All other official records must be 127
maintained within the state for at least 7 years, unless 128
otherwise provided by general law. The records of the 129
association shall be made available to a unit owner within 45 130
miles of the condominium propert y or within the county in which 131
the condominium property is located within 10 working days after 132
receipt of a written request by the board or its designee. 133
However, such distance requirement does not apply to an 134
association governing a timeshare condominiu m. This paragraph 135
may be complied with by having a copy of the official records of 136
the association available for inspection or copying on the 137
condominium property or association property, or the association 138
may offer the option of making the records availa ble to a unit 139
owner electronically via the Internet or by allowing the records 140
to be viewed in electronic format on a computer screen and 141
printed upon request. The association is not responsible for the 142
use or misuse of the information provided to an assoc iation 143
member or his or her authorized representative in compliance 144
with this chapter unless the association has an affirmative duty 145
not to disclose such information under this chapter. 146
(g)1. By January 1, 2019, An association managing a 147
condominium with 150 or more units which does not contain 148
timeshare units shall post digital copies of the documents 149
specified in subparagraph 2. on its website or make such 150
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documents available through an application that can be 151
downloaded on a mobile device. The name and contact information 152
of the association's recordkeeper must be displayed on the 153
association's website or application. 154
a. The association's website or application must be: 155
(I) An independent website, application, or web portal 156
wholly owned and operated by the association; or 157
(II) A website, application, or web portal operated by a 158
third-party provider with whom the association owns, leases, 159
rents, or otherwise obtains the right to operate a web page, 160
subpage, web portal, collection of subpages or web p ortals, or 161
an application which is dedicated to the association's 162
activities and on which required notices, records, and documents 163
may be posted or made available by the association. 164
b. The association's website or application must be 165
accessible through the Internet and must contain a subpage, web 166
portal, or other protected electronic location that is 167
inaccessible to the general public and accessible only to unit 168
owners and employees of the association. 169
c. Upon a unit owner's written request, the association 170
must provide the unit owner with a username and password and 171
access to the protected sections of the association's website or 172
application which contain any notices, records, or documents 173
that must be electronically provided. 174
2. A current copy of the following documents must be 175
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posted in digital format on the association's website or 176
application: 177
a. The recorded declaration of condominium of each 178
condominium operated by the association and each amendment to 179
each declaration. 180
b. The recorded bylaws of the association and each 181
amendment to the bylaws. 182
c. The articles of incorporation of the association, or 183
other documents creating the association, and each amendment to 184
the articles of incorporation or other documents. The copy 185
posted pursuant to this sub-subparagraph must be a copy of the 186
articles of incorporation filed with the Department of State. 187
d. The rules of the association. 188
e. A list of all executory contracts or documents to which 189
the association is a party or under which the ass ociation or the 190
unit owners have an obligation or responsibility and, after 191
bidding for the related materials, equipment, or services has 192
closed, a list of bids received by the association within the 193
past year. Summaries of bids for materials, equipment, o r 194
services which exceed $500 must be maintained on the website or 195
application for 1 year. In lieu of summaries, complete copies of 196
the bids may be posted. 197
f. The annual budget required by s. 718.112(2)(f) and any 198
proposed budget to be considered at the a nnual meeting. 199
g. The financial report required by subsection (13) and 200
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any monthly income or expense statement to be considered at a 201
meeting. 202
h. The certification of each director required by s. 203
718.112(2)(d)4.b. 204
i. All contracts or transactions betw een the association 205
and any director, officer, corporation, firm, or association 206
that is not an affiliated condominium association or any other 207
entity in which an association director is also a director or 208
officer and financially interested. 209
j. Any contract or document regarding a conflict of 210
interest or possible conflict of interest as provided in ss. 211
468.436(2)(b)6. and 718.3027(3). 212
k. The notice of any unit owner meeting and the agenda for 213
the meeting, as required by s. 718.112(2)(d)3., no later than 14 214
days before the meeting. The notice must be posted in plain view 215
on the front page of the website or application, or on a 216
separate subpage of the website or application labeled "Notices" 217
which is conspicuously visible and linked from the front page. 218
The association must also post on its website or application any 219
document to be considered and voted on by the owners during the 220
meeting or any document listed on the agenda at least 7 days 221
before the meeting at which the document or the information 222
within the document will be considered. 223
l. Notice of any board meeting, the agenda, and any other 224
document required for the meeting as required by s. 225
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718.112(2)(c), which must be posted no later than the date 226
required for notice under s. 718.112(2)(c). 227
m. The inspection reports described in ss. 553.899 and 228
718.301(4)(p) and any other inspection report relating to a 229
structural or life safety inspection of condominium property. 230
n. The association's most recent structural integrity 231
reserve study, if applicable. 232
3. The association shall ensure that the information and 233
records described in paragraph (c), which are not allowed to be 234
accessible to unit owners, are not posted on the association's 235
website or application. If protected information or information 236
restricted from being accessible to unit owners is included in 237
documents that are required to be posted on the association's 238
website or application, the association shall ensure the 239
information is redacted before posting the documents. 240
Notwithstanding the forego ing, the association or its agent is 241
not liable for disclosing information that is protected or 242
restricted under this paragraph unless such disclosure was made 243
with a knowing or intentional disregard of the protected or 244
restricted nature of such informatio n. 245
4. The failure of the association to post information 246
required under subparagraph 2. is not in and of itself 247
sufficient to invalidate any action or decision of the 248
association's board or its committees. 249
Section 3. Subsection (4) of section 718.122 4, Florida 250
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Statutes, is amended to read: 251
718.1224 Prohibition against SLAPP suits. — 252
(4) Condominium associations may not expend association 253
funds or reserve funds in prosecuting a SLAPP suit against a 254
condominium unit owner. 255
Section 4. Subsection ( 1) of section 718.501, Florida 256
Statutes, is amended to read: 257
718.501 Authority, responsibility, and duties of Division 258
of Florida Condominiums, Timeshares, and Mobile Homes. — 259
(1) The division may enforce and ensure compliance with 260
this chapter and rule s relating to the development, 261
construction, sale, lease, ownership, operation, and management 262
of residential condominium units and complaints related to the 263
procedural completion of milestone inspections under s. 553.899. 264
In performing its duties, the div ision has complete jurisdiction 265
to investigate complaints and enforce compliance with respect to 266
associations that are still under developer control or the 267
control of a bulk assignee or bulk buyer pursuant to part VII of 268
this chapter and complaints against developers, bulk assignees, 269
or bulk buyers involving improper turnover or failure to 270
turnover, pursuant to s. 718.301. However, after turnover has 271
occurred, the division has jurisdiction to investigate 272
complaints related only to financial issues, election s, and the 273
maintenance of and unit owner access to association records 274
under s. 718.111(12), and the procedural completion of 275
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structural integrity reserve studies under s. 718.112(2)(g). If 276
the division receives a complaint alleging criminal activity, 277
whether before or after turnover of the association, the 278
division must forward the complaint to the Department of Law 279
Enforcement. 280
(a)1. The division must, within 72 hours after receiving a 281
complaint, review the complaint and determine whether the 282
complaint, on its face, alleges any criminal activity. If the 283
division determines that a complaint contains allegations of 284
criminal activity, the division shall forward the complaint to 285
the Department of Law Enforcement for investigation. The 286
division is responsible for investigating all portions of the 287
complaint that do not allege criminal activity. 288
2. The division may make necessary public or private 289
investigations within or outside the this state to determine 290
whether any person has violated this chapter or any r ule or 291
order hereunder, to aid in the enforcement of this chapter, or 292
to aid in the adoption of rules or forms. 293
3.2. The division may submit any official written report, 294
worksheet, or other related paper, or a duly certified copy 295
thereof, compiled, prepa red, drafted, or otherwise made by and 296
duly authenticated by a financial examiner or analyst to be 297
admitted as competent evidence in any hearing in which the 298
financial examiner or analyst is available for cross -examination 299
and attests under oath that such documents were prepared as a 300
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result of an examination or inspection conducted pursuant to 301
this chapter. 302
(b) The division may require or permit any person to file 303
a statement in writing, under oath or otherwise, as the division 304
determines, as to the facts and circumstances concerning a 305
matter to be investigated. 306
(c) For the purpose of any investigation under this 307
chapter, the division director or any officer or employee 308
designated by the division director may administer oaths or 309
affirmations, subpoena wi tnesses and compel their attendance, 310
take evidence, and require the production of any matter which is 311
relevant to the investigation, including the existence, 312
description, nature, custody, condition, and location of any 313
books, documents, or other tangible t hings and the identity and 314
location of persons having knowledge of relevant facts or any 315
other matter reasonably calculated to lead to the discovery of 316
material evidence. Upon the failure by a person to obey a 317
subpoena or to answer questions propounded by the investigating 318
officer and upon reasonable notice to all affected persons, the 319
division may apply to the circuit court for an order compelling 320
compliance. 321
(d) Notwithstanding any remedies available to unit owners 322
and associations, if the division has reasonable cause to 323
believe that a violation of any provision of this chapter or 324
related rule has occurred, the division may institute 325
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enforcement proceedings in its own name against any developer, 326
bulk assignee, bulk buyer, association, officer, or member of 327
the board of administration, or its assignees or agents, as 328
follows: 329
1. The division may permit a person whose conduct or 330
actions may be under investigat ion to waive formal proceedings 331
and enter into a consent proceeding whereby orders, rules, or 332
letters of censure or warning, whether formal or informal, may 333
be entered against the person. 334
2. The division may issue an order requiring the 335
developer, bulk assignee, bulk buyer, association, developer -336
designated officer, or developer -designated member of the board 337
of administration, developer -designated assignees or agents, 338
bulk assignee-designated assignees or agents, bulk buyer -339
designated assignees or agents , community association manager, 340
or community association management firm to cease and desist 341
from the unlawful practice and take such affirmative action as 342
in the judgment of the division carry out the purposes of this 343
chapter. If the division finds that a developer, bulk assignee, 344
bulk buyer, association, officer, or member of the board of 345
administration, or its assignees or agents, is violating or is 346
about to violate any provision of this chapter, any rule adopted 347
or order issued by the division, or any written agreement 348
entered into with the division, and presents an immediate danger 349
to the public requiring an immediate final order, it may issue 350
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an emergency cease and desist order reciting with particularity 351
the facts underlying such findings. The emerge ncy cease and 352
desist order is effective for 90 days. If the division begins 353
nonemergency cease and desist proceedings, the emergency cease 354
and desist order remains effective until the conclusion of the 355
proceedings under ss. 120.569 and 120.57. 356
3. If a developer, bulk assignee, or bulk buyer fails to 357
pay any restitution determined by the division to be owed, plus 358
any accrued interest at the highest rate permitted by law, 359
within 30 days after expiration of any appellate time period of 360
a final order requirin g payment of restitution or the conclusion 361
of any appeal thereof, whichever is later, the division must 362
bring an action in circuit or county court on behalf of any 363
association, class of unit owners, lessees, or purchasers for 364
restitution, declaratory relie f, injunctive relief, or any other 365
available remedy. The division may also temporarily revoke its 366
acceptance of the filing for the developer to which the 367
restitution relates until payment of restitution is made. 368
4. The division may petition the court for appointment of 369
a receiver or conservator. If appointed, the receiver or 370
conservator may take action to implement the court order to 371
ensure the performance of the order and to remedy any breach 372
thereof. In addition to all other means provided by law for th e 373
enforcement of an injunction or temporary restraining order, the 374
circuit court may impound or sequester the property of a party 375
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defendant, including books, papers, documents, and related 376
records, and allow the examination and use of the property by 377
the division and a court-appointed receiver or conservator. 378
5. The division may apply to the circuit court for an 379
order of restitution whereby the defendant in an action brought 380
under subparagraph 4. is ordered to make restitution of those 381
sums shown by the division to have been obtained by the 382
defendant in violation of this chapter. At the option of the 383
court, such restitution is payable to the conservator or 384
receiver appointed under subparagraph 4. or directly to the 385
persons whose funds or assets were obtain ed in violation of this 386
chapter. 387
6. The division may impose a civil penalty against a 388
developer, bulk assignee, or bulk buyer, or association, or its 389
assignee or agent, for any violation of this chapter or related 390
rule. The division may impose a civil pe nalty individually 391
against an officer or board member who willfully and knowingly 392
violates this chapter, an adopted rule, or a final order of the 393
division; may order the removal of such individual as an officer 394
or from the board of administration or as an officer of the 395
association; and may prohibit such individual from serving as an 396
officer or on the board of a community association for a period 397
of time. The term "willfully and knowingly" means that the 398
division informed the officer or board member that hi s or her 399
action or intended action violates this chapter, a rule adopted 400
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under this chapter, or a final order of the division and that 401
the officer or board member refused to comply with the 402
requirements of this chapter, a rule adopted under this chapter, 403
or a final order of the division. The division, before 404
initiating formal agency action under chapter 120, must afford 405
the officer or board member an opportunity to voluntarily 406
comply, and an officer or board member who complies within 10 407
days is not subject to a civil penalty. A penalty may be imposed 408
on the basis of each day of continuing violation, but the 409
penalty for any offense may not exceed $5,000. The division 410
shall adopt, by rule, penalty guidelines applicable to possible 411
violations or to categories of violations of this chapter or 412
rules adopted by the division. The guidelines must specify a 413
meaningful range of civil penalties for each such violation of 414
the statute and rules and must be based upon the harm caused by 415
the violation, upon the repetition of the violation, and upon 416
such other factors deemed relevant by the division. For example, 417
the division may consider whether the violations were committed 418
by a developer, bulk assignee, or bulk buyer, or owner -419
controlled association, the size of the assoc iation, and other 420
factors. The guidelines must designate the possible mitigating 421
or aggravating circumstances that justify a departure from the 422
range of penalties provided by the rules. It is the legislative 423
intent that minor violations be distinguished fr om those which 424
endanger the health, safety, or welfare of the condominium 425
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residents or other persons and that such guidelines provide 426
reasonable and meaningful notice to the public of likely 427
penalties that may be imposed for proscribed conduct. This 428
subsection does not limit the ability of the division to 429
informally dispose of administrative actions or complaints by 430
stipulation, agreed settlement, or consent order. All amounts 431
collected shall be deposited with the Chief Financial Officer to 432
the credit of the Division of Florida Condominiums, Timeshares, 433
and Mobile Homes Trust Fund. If a developer, bulk assignee, or 434
bulk buyer fails to pay the civil penalty and the amount deemed 435
to be owed to the association, the division shall issue an order 436
directing that such developer, bulk assignee, or bulk buyer 437
cease and desist from further operation until such time as the 438
civil penalty is paid or may pursue enforcement of the penalty 439
in a court of competent jurisdiction. If an association fails to 440
pay the civil penalty , the division shall pursue enforcement in 441
a court of competent jurisdiction, and the order imposing the 442
civil penalty or the cease and desist order is not effective 443
until 20 days after the date of such order. Any action commenced 444
by the division shall be brought in the county in which the 445
division has its executive offices or in the county where the 446
violation occurred. 447
7. If a unit owner presents the division with proof that 448
the unit owner has requested access to official records in 449
writing by certified mail, and that after 10 days the unit owner 450
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again made the same request for access to official records in 451
writing by certified mail, and that more than 10 days has 452
elapsed since the second request and the association has still 453
failed or refused to provide access to official records as 454
required by this chapter, the division shall issue a subpoena 455
requiring production of the requested records where the records 456
are kept pursuant to s. 718.112. 457
8. In addition to subparagraph 6., the division may seek 458
the imposition of a civil penalty through the circuit court for 459
any violation for which the division may issue a notice to show 460
cause under paragraph (r). The civil penalty shall be at least 461
$500 but no more than $5,000 for each violation. The court may 462
also award to the prevailing party court costs and reasonable 463
attorney fees and, if the division prevails, may also award 464
reasonable costs of investigation. 465
(e) The division may prepare and disseminate a prospectus 466
and other information to assist prospective owner s, purchasers, 467
lessees, and developers of residential condominiums in assessing 468
the rights, privileges, and duties pertaining thereto. 469
(f) The division may adopt rules to administer and enforce 470
this chapter. 471
(g) The division shall establish procedures for providing 472
notice to an association and the developer, bulk assignee, or 473
bulk buyer during the period in which the developer, bulk 474
assignee, or bulk buyer controls the association if the division 475
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is considering the issuance of a declaratory statement wi th 476
respect to the declaration of condominium or any related 477
document governing such condominium community. 478
(h) The division shall furnish each association that pays 479
the fees required by paragraph (2)(a) a copy of this chapter, as 480
amended, and the rules a dopted thereto on an annual basis. 481
(i) The division shall annually provide each association 482
with a summary of declaratory statements and formal legal 483
opinions relating to the operations of condominiums which were 484
rendered by the division during the previ ous year. 485
(j) The division shall provide training and educational 486
programs for condominium association board members and unit 487
owners. The training may, in the division's discretion, include 488
web-based electronic media and live training and seminars in 489
various locations throughout the state. The division may review 490
and approve education and training programs for board members 491
and unit owners offered by providers and shall maintain a 492
current list of approved programs and providers and make such 493
list available to board members and unit owners in a reasonable 494
and cost-effective manner. 495
(k) The division shall maintain a toll -free telephone 496
number accessible to condominium unit owners. 497
(l) The division shall develop a program to certify both 498
volunteer and paid mediators to provide mediation of condominium 499
disputes. The division shall provide, upon request, a list of 500
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such mediators to any association, unit owner, or other 501
participant in alternative dispute resolution proceedings under 502
s. 718.1255 requesting a c opy of the list. The division shall 503
include on the list of volunteer mediators only the names of 504
persons who have received at least 20 hours of training in 505
mediation techniques or who have mediated at least 20 disputes. 506
In order to become initially certifi ed by the division, paid 507
mediators must be certified by the Supreme Court to mediate 508
court cases in county or circuit courts. However, the division 509
may adopt, by rule, additional factors for the certification of 510
paid mediators, which must be related to exp erience, education, 511
or background. Any person initially certified as a paid mediator 512
by the division must, in order to continue to be certified, 513
comply with the factors or requirements adopted by rule. 514
(m) If a complaint is made, the division must conduc t its 515
inquiry with due regard for the interests of the affected 516
parties. Within 30 days after receipt of a complaint, the 517
division shall acknowledge the complaint in writing and notify 518
the complainant whether the complaint is within the jurisdiction 519
of the division and whether additional information is needed by 520
the division from the complainant. The division shall conduct 521
its investigation and, within 90 days after receipt of the 522
original complaint or of timely requested additional 523
information, take action upon the complaint. However, the 524
failure to complete the investigation within 90 days does not 525
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prevent the division from continuing the investigation, 526
accepting or considering evidence obtained or received after 90 527
days, or taking administrative action if reasonable cause exists 528
to believe that a violation of this chapter or a rule has 529
occurred. If an investigation is not completed within the time 530
limits established in this paragraph, the division shall, on a 531
monthly basis, notify the complainant in writin g of the status 532
of the investigation. When reporting its action to the 533
complainant, the division shall inform the complainant of any 534
right to a hearing under ss. 120.569 and 120.57. The division 535
may adopt rules regarding the submission of a complaint again st 536
an association. 537
(n) Condominium association directors, officers, and 538
employees; condominium developers; bulk assignees, bulk buyers, 539
and community association managers; and community association 540
management firms have an ongoing duty to reasonably coop erate 541
with the division in any investigation under this section. The 542
division shall refer to local law enforcement authorities any 543
person whom the division believes has altered, destroyed, 544
concealed, or removed any record, document, or thing required to 545
be kept or maintained by this chapter with the purpose to impair 546
its verity or availability in the department's investigation. 547
(o) The division may: 548
1. Contract with agencies in the this state or other 549
jurisdictions to perform investigative functions; or 550
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2. Accept grants-in-aid from any source. 551
(p) The division shall cooperate with similar agencies in 552
other jurisdictions to establish uniform filing procedures and 553
forms, public offering statements, advertising standards, and 554
rules and common administra tive practices. 555
(q) The division shall consider notice to a developer, 556
bulk assignee, or bulk buyer to be complete when it is delivered 557
to the address of the developer, bulk assignee, or bulk buyer 558
currently on file with the division. 559
(r) In addition to its enforcement authority, the division 560
may issue a notice to show cause, which must provide for a 561
hearing, upon written request, in accordance with chapter 120. 562
(s) The division shall submit to the Governor, the 563
President of the Senate, the Speaker of the House of 564
Representatives, and the chairs of the legislative 565
appropriations committees an annual report that includes, but 566
need not be limited to, the number of training programs provided 567
for condominium association board members and unit owners, the 568
number of complaints received by type, the number and percent of 569
complaints acknowledged in writing within 30 days and the number 570
and percent of investigations acted upon within 90 days in 571
accordance with paragraph (m), and the number of investigations 572
exceeding the 90-day requirement. The annual report must also 573
include an evaluation of the division's core business processes 574
and make recommendations for improvements, including statutory 575
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changes. The report shall be submitted by September 30 following 576
the end of the fiscal year. 577
Section 5. Subsection (2) of section 720.302, Florida 578
Statutes, is amended and subsection (6) is added to that section 579
to read: 580
720.302 Purposes, scope, and application ; jurisdiction of 581
the division.— 582
(2) The Legislature recog nizes that it is not in the best 583
interest of homeowners' associations or the individual 584
association members thereof to create or impose a bureau or 585
other agency of state government to regulate the affairs of 586
homeowners' associations. However, in accordance with s. 587
720.311, the Legislature finds that homeowners' associations and 588
their individual members will benefit from an expedited 589
alternative process for resolution of election and recall 590
disputes and presuit mediation of other disputes involving 591
covenant enforcement and authorizes the department to hear, 592
administer, and determine these disputes as more fully set forth 593
in this chapter. Further, the Legislature recognizes that 594
certain contract rights have been created for the benefit of 595
homeowners' associati ons and members thereof before the 596
effective date of this act and that ss. 720.301 -720.407 are not 597
intended to impair such contract rights, including, but not 598
limited to, the rights of the developer to complete the 599
community as initially contemplated. Finally, the Legislature 600
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recognizes that it is in the best interests of homeowners' 601
associations and the individual association members thereof that 602
complaints involving criminal activity be investigated 603
thoroughly. 604
(6) The division has jurisdiction to accept and review 605
complaints alleging criminal activity, whether before or after 606
turnover of the association, and shall follow the procedures 607
under s. 720.311(1)(b). 608
Section 6. Subsection (1), paragraphs (g) and (m) of 609
subsection (4), subsection (5), a nd paragraph (c) of subsection 610
(8) of section 720.303, Florida Statutes, are amended to read: 611
720.303 Association powers and duties; meetings of board; 612
official records; budgets; financial reporting; association 613
funds; recalls.— 614
(1) POWERS AND DUTIES. — 615
(a) An association which operates a community as defined 616
in s. 720.301, must be operated by an association that is a 617
Florida corporation. After October 1, 1995, the association must 618
be incorporated and the initial governing documents must be 619
recorded in the official records of the county in which the 620
community is located. An association may operate more than one 621
community. 622
(b) The officers and directors of an association have a 623
fiduciary relationship to the members who are served by the 624
association. As required by s. 617.0830, an officer or a 625
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director shall discharge his or her duties in good faith, with 626
the care an ordinarily prudent person in a like position would 627
exercise under similar circumstances, and in a manner he or she 628
reasonably believes to be in the interests of the association. 629
An officer or a director is liable for monetary damages as 630
provided in s. 617.0834 if such officer or director breached or 631
failed to perform his or her duties and the breach of, or 632
failure to perform, his or her duti es constitutes a violation of 633
criminal law as provided in s. 617.0834; constitutes a 634
transaction from which the officer or director derived an 635
improper personal benefit, either directly or indirectly; or 636
constitutes recklessness or an act or omission that was in bad 637
faith, with malicious purpose, or in a manner exhibiting wanton 638
and willful disregard of human rights, safety, or property. 639
Forgery of a ballot envelope or voting certificate used in a 640
homeowners' association election is punishable as provided i n s. 641
831.01, the theft or embezzlement of funds of a homeowners' 642
association is punishable as provided in s. 812.014, and the 643
destruction of or the refusal to allow inspection or copying of 644
an official record of a homeowners' association that is 645
accessible to parcel owners within the time periods required by 646
general law in furtherance of any crime is punishable as 647
tampering with physical evidence as provided in s. 918.13 or as 648
obstruction of justice as provided in chapter 843. An officer or 649
a director charged by information or indictment with a crime 650
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referenced in this paragraph must be removed from office, and 651
the vacancy must be filled as provided in s. 720.306(9) until 652
the end of the officer's or director's period of suspension or 653
the end of his or her te rm of office, whichever occurs first. If 654
a criminal charge is pending against the officer or director, he 655
or she may not be appointed or elected to a position as an 656
officer or a director of any association and may not have access 657
to the official records of any association, except pursuant to a 658
court order. However, if the charges are resolved without a 659
finding of guilt, the officer or director must be reinstated for 660
the remainder of his or her term of office, if any. 661
(c) The powers and duties of an associ ation include those 662
set forth in this chapter and, except as expressly limited or 663
restricted in this chapter, those set forth in the governing 664
documents. An association may not modify or restrict the use of 665
a parcel without amending its governing documents . 666
(d) After control of the association is obtained by 667
members other than the developer, the association may institute, 668
maintain, settle, or appeal actions or hearings in its name on 669
behalf of all members concerning matters of common interest to 670
the members, including, but not limited to, the common areas; 671
roof or structural components of a building, or other 672
improvements for which the association is responsible; 673
mechanical, electrical, or plumbing elements serving an 674
improvement or building for which the association is 675
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responsible; representations of the developer pertaining to any 676
existing or proposed commonly used facility; and protesting ad 677
valorem taxes on commonly used facilities. The association may 678
defend actions in eminent domain or bring inverse c ondemnation 679
actions. Before commencing litigation against any party in the 680
name of the association involving amounts in controversy in 681
excess of $100,000, the association must obtain the affirmative 682
approval of a majority of the voting interests at a meeti ng of 683
the membership at which a quorum has been attained. This 684
paragraph subsection does not limit any statutory or common -law 685
right of any individual member or class of members to bring any 686
action without participation by the association. 687
(e) A member does not have authority to act for the 688
association by virtue of being a member. An association may have 689
more than one class of members and may issue membership 690
certificates. 691
(f) An association of 15 or fewer parcel owners may 692
enforce only the requirement s of those deed restrictions 693
established prior to the purchase of each parcel upon an 694
affected parcel owner or owners. 695
(4) OFFICIAL RECORDS. —The association shall maintain each 696
of the following items, when applicable, which constitute the 697
official records of the association: 698
(g) A current roster of all members and their designated 699
mailing addresses and parcel identifications. A member's 700
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designated mailing address is the member's property address, 701
unless the member has sent written notice to the associat ion 702
requesting that a different mailing address be used for all 703
required notices. The association shall also maintain the e-mail 704
electronic mailing addresses and the facsimile numbers 705
designated by members for receiving notice sent by electronic 706
transmission of those members consenting to receive notice by 707
electronic transmission. A member's e-mail address is the e -mail 708
address the member provided when consenting in writing to 709
receiving notice by electronic transmission unless the member 710
has sent written notice to the association requesting that a 711
different e-mail address be used for all required notices. The 712
e-mail electronic mailing addresses and facsimile numbers 713
provided by members unit owners to receive notice by electronic 714
transmission must shall be removed from association records when 715
the member revokes consent to receive notice by electronic 716
transmission is revoked. However, the association is not liable 717
for an erroneous disclosure of the e-mail electronic mail 718
address or the facsimile number for receiving electronic 719
transmission of notices. 720
(m) All affirmative acknowledgments made pursuant to s. 721
720.3085(4)(c)3 s. 720.3085(3)(c)3. 722
(5) INSPECTION AND COPYING OF RECORD S.— The board of each 723
homeowners' association shall appoint an association member as a 724
recordkeeper whose responsibility is to maintain the official 725
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records of the association during the time period of his or her 726
appointment. The board must specify the dur ation of such 727
appointment and may grant the recordkeeper additional authority 728
as needed. The name and contact information of the recordkeeper 729
must be displayed on the association's website and the 730
Department of State website. The official records shall be 731
maintained within the state for at least 7 years and shall be 732
made available to a parcel owner for inspection or photocopying 733
within 45 miles of the community or within the county in which 734
the association is located within 10 business days after receipt 735
by the board or its designee of a written request. This 736
subsection may be complied with by having a copy of the official 737
records available for inspection or copying in the community or, 738
at the option of the association, by making the records 739
available to a parcel owner electronically via the Internet or 740
by allowing the records to be viewed in electronic format on a 741
computer screen and printed upon request. If the association has 742
a photocopy machine available where the records are maintained, 743
it must provide parcel owners with copies on request during the 744
inspection if the entire request is limited to no more than 25 745
pages. An association shall allow a member or his or her 746
authorized representative to use a portable device, including a 747
smartphone, tablet, porta ble scanner, or any other technology 748
capable of scanning or taking photographs, to make an electronic 749
copy of the official records in lieu of the association's 750
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providing the member or his or her authorized representative 751
with a copy of such records. The as sociation may not charge a 752
fee to a member or his or her authorized representative for the 753
use of a portable device. 754
(a) The failure of an association to provide access to the 755
records within 10 business days after receipt of a written 756
request submitted by certified mail, return receipt requested, 757
creates a rebuttable presumption that the association willfully 758
failed to comply with this subsection. 759
(b) A member who is denied access to official records is 760
entitled to the actual damages or minimum damages for the 761
association's willful failure to comply with this subsection. 762
The minimum damages are to be $50 per calendar day up to 10 763
days, the calculation to begin on the 11th business day after 764
receipt of the written request. 765
(c) The association may adopt reasonable written rules 766
governing the frequency, time, location, notice, records to be 767
inspected, and manner of inspections, but may not require a 768
parcel owner to demonstrate any proper purpose for the 769
inspection, state any reason for the inspection, or l imit a 770
parcel owner's right to inspect records to less than one 8 -hour 771
business day per month. The association may impose fees to cover 772
the costs of providing copies of the official records, including 773
the costs of copying and the costs required for personn el to 774
retrieve and copy the records if the time spent retrieving and 775
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copying the records exceeds one -half hour and if the personnel 776
costs do not exceed $20 per hour. Personnel costs may not be 777
charged for records requests that result in the copying of 25 o r 778
fewer pages. The association may charge up to 25 cents per page 779
for copies made on the association's photocopier. If the 780
association does not have a photocopy machine available where 781
the records are kept, or if the records requested to be copied 782
exceed 25 pages in length, the association may have copies made 783
by an outside duplicating service and may charge the actual cost 784
of copying, as supported by the vendor invoice. The association 785
shall maintain an adequate number of copies of the recorded 786
governing documents, to ensure their availability to members and 787
prospective members. Notwithstanding this paragraph, the 788
following records are not accessible to members or parcel 789
owners: 790
1. Any record protected by the lawyer -client privilege as 791
described in s. 90.502 and any record protected by the work -792
product privilege, including, but not limited to, a record 793
prepared by an association attorney or prepared at the 794
attorney's express direction which reflects a mental impression, 795
conclusion, litigation strategy, or legal theory of the attorney 796
or the association and which was prepared exclusively for civil 797
or criminal litigation or for adversarial administrative 798
proceedings or which was prepared in anticipation of such 799
litigation or proceedings until the conclusion o f the litigation 800
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or proceedings. 801
2. Information obtained by an association in connection 802
with the approval of the lease, sale, or other transfer of a 803
parcel, but only to the extent the record contains protected 804
personal identifying information or any oth er information that 805
is protected by applicable state or federal privacy laws. Any 806
such protected information must be redacted from the records by 807
the association and the redacted records must be made available 808
to a parcel owner for inspection or photocopyi ng if requested. 809
3. Information an association obtains in a gated community 810
in connection with guests' visits to parcel owners or community 811
residents. 812
4. Personnel records of association or management company 813
employees, including, but not limited to, d isciplinary, payroll, 814
health, and insurance records. For purposes of this 815
subparagraph, the term "personnel records" does not include 816
written employment agreements with an association or management 817
company employee or budgetary or financial records that in dicate 818
the compensation paid to an association or management company 819
employee. 820
5. Medical records of parcel owners or community 821
residents. 822
6. Social security numbers, driver license numbers, credit 823
card numbers, e-mail electronic mailing addresses, telephone 824
numbers, facsimile numbers, emergency contact information, any 825
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addresses for a parcel owner other than as provided for 826
association notice requirements, and other personal identifying 827
information of any person, excluding the person's name, parcel 828
designation, mailing address, and property address. 829
Notwithstanding the restrictions in this subparagraph, an 830
association may print and distribute to parcel owners a 831
directory containing the name, parcel address, and all telephone 832
numbers of each parcel owner . However, an owner may exclude his 833
or her telephone numbers from the directory by so requesting in 834
writing to the association. An owner may consent in writing to 835
the disclosure of other contact information described in this 836
subparagraph. The association i s not liable for the disclosure 837
of information that is protected under this subparagraph if the 838
information is included in an official record of the association 839
and is voluntarily provided by an owner and not requested by the 840
association. 841
7. Any electronic security measure that is used by the 842
association to safeguard data, including passwords. 843
8. The software and operating system used by the 844
association which allows the manipulation of data, even if the 845
owner owns a copy of the same software used by the association. 846
The data is part of the official records of the association. 847
9. All affirmative acknowledgments made pursuant to s. 848
720.3085(4)(c)3. s. 720.3085(3)(c)3. 849
(d) The association or its authorized agent is not 850
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required to provide a prospective purchaser or lienholder with 851
information about the residential subdivision or the association 852
other than information or documents required by this chapter to 853
be made available or disclosed. The association or its 854
authorized agent may charge a reasonable fe e to the prospective 855
purchaser or lienholder or the current parcel owner or member 856
for providing good faith responses to requests for information 857
by or on behalf of a prospective purchaser or lienholder, other 858
than that required by law, if the fee does not exceed $150 plus 859
the reasonable cost of photocopying and any attorney fees 860
incurred by the association in connection with the response. 861
(8) ASSOCIATION FUNDS; COMMINGLING. — 862
(c) Association funds and reserve funds may not be used by 863
a developer, the association, or elected board members to defend 864
a civil or criminal action, administrative proceeding, or 865
arbitration proceeding or to pay attorney fees relating to such 866
action or proceeding that has been filed against the developer 867
or directors appointed to the association board by the 868
developer, even when the subject of the action or proceeding 869
concerns the operation of the developer -controlled association. 870
Section 7. Paragraph (d) of subsection (4) of section 871
720.304, Florida Statutes, is amended to read: 872
720.304 Right of owners to peaceably assemble; display of 873
flag; SLAPP suits prohibited. — 874
(4) It is the intent of the Legislature to protect the 875
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right of parcel owners to exercise their rights to instruct 876
their representatives and petition for red ress of grievances 877
before the various governmental entities of this state as 878
protected by the First Amendment to the United States 879
Constitution and s. 5, Art. I of the State Constitution. The 880
Legislature recognizes that "Strategic Lawsuits Against Public 881
Participation" or "SLAPP" suits, as they are typically called, 882
have occurred when members are sued by individuals, business 883
entities, or governmental entities arising out of a parcel 884
owner's appearance and presentation before a governmental entity 885
on matters related to the homeowners' association. However, it 886
is the public policy of this state that government entities, 887
business organizations, and individuals not engage in SLAPP 888
suits because such actions are inconsistent with the right of 889
parcel owners to participate in the state's institutions of 890
government. Therefore, the Legislature finds and declares that 891
prohibiting such lawsuits by governmental entities, business 892
entities, and individuals against parcel owners who address 893
matters concerning their homeow ners' association will preserve 894
this fundamental state policy, preserve the constitutional 895
rights of parcel owners, and assure the continuation of 896
representative government in this state. It is the intent of the 897
Legislature that such lawsuits be expeditiou sly disposed of by 898
the courts. 899
(d) Homeowners' associations may not expend association 900
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funds or reserve funds in prosecuting a SLAPP suit against a 901
parcel owner. 902
Section 8. Subsections (1), (2), and (5) of section 903
720.305, Florida Statutes, are amend ed, and subsection (7) is 904
added to that section to read: 905
720.305 Obligations of members; remedies at law or in 906
equity; levy of fines and suspension of use rights. — 907
(1) Each member and the member's tenants, guests, and 908
invitees, and each association, ar e governed by, and must comply 909
with, this chapter, the governing documents of the community, 910
and the rules of the association. Actions at law or in equity, 911
or both, to redress alleged failure or refusal to comply with 912
these provisions may be brought by the association or by any 913
member against: 914
(a) The association; 915
(b) A member; 916
(c) Any director or officer of an association who 917
willfully and knowingly fails to comply with these provisions; 918
and 919
(d) Any tenants, guests, or invitees occupying a parcel o r 920
using the common areas. 921
922
The prevailing party in any such litigation is entitled to 923
recover reasonable attorney fees and costs as provided in 924
paragraph (2)(e). A member prevailing in an action between the 925
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association and the member under this section, in addition to 926
recovering his or her reasonable attorney fees, may recover 927
additional amounts as determined by the court to be necessary to 928
reimburse the member for his or her share of assessments levied 929
by the association to fund its expenses of the litigat ion. This 930
relief does not exclude other remedies provided by law. This 931
section does not deprive any person of any other available right 932
or remedy. 933
(2) An association may levy reasonable fines for 934
violations of the declaration, association's bylaws, or 935
reasonable rules of the association . A fine may not exceed $100 936
per violation against any member or any member's tenant, guest, 937
or invitee for the failure of the owner of the parcel or its 938
occupant, licensee, or invitee to comply with any provision of 939
the declaration, the association bylaws, or reasonable rules of 940
the association unless otherwise provided in the governing 941
documents; however, a fine may not exceed $1,000 per violation . 942
A fine may be levied by the board for each day of a continuing 943
violation, with a single notice and opportunity for hearing, 944
except that the fine may not exceed $1,000 in the aggregate 945
unless otherwise provided in the governing documents. A fine of 946
less than $1,000 or less may not become a lien against a parcel 947
and fines may not be aggregated to create a lien against a 948
parcel. In any action to recover a fine, the prevailing party is 949
entitled to reasonable attorney fees and costs from the 950
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nonprevailing party as provided in paragraph (e) determined by 951
the court. 952
(a) An association may suspend, for a reasonable period of 953
time, the right of a member, or a member's tenant, guest, or 954
invitee, to use common areas and facilities for the failure of 955
the owner of the parcel or its occupant, licensee, or invitee to 956
comply with any provision o f the declaration, the association 957
bylaws, or reasonable rules of the association. This paragraph 958
does not apply to that portion of common areas used to provide 959
access or utility services to the parcel. A suspension may not 960
prohibit an owner or tenant of a parcel from having vehicular 961
and pedestrian ingress to and egress from the parcel, including, 962
but not limited to, the right to park. 963
(b) A fine or suspension levied for a violation by the 964
board of administration may not be imposed unless the board 965
first provides at least 30 14 days' notice to the parcel owner 966
at his or her designated mailing or e -mail address in the 967
association's official records and, if applicable, any occupant, 968
licensee, or invitee of the parcel owner, sought to be fined or 969
suspended and an opportunity for a hearing before a committee of 970
at least three members appointed by the board who are not 971
officers, directors, or employees of the association, or the 972
spouse, parent, child, brother, or sister of an officer, 973
director, or employee. The notice must include a description of 974
the alleged violation, the specific action required to cure such 975
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violation, and the date and location of the hearing. A parcel 976
owner has the right to attend a hearing by telephone or other 977
electronic means. 978
(c) If the committee, by majority vote, does not approve a 979
proposed fine or suspension, the proposed fine or suspension may 980
not be imposed. If the committee, by majority vote, determines 981
that a violation does not exist then no other action may be 982
taken related to that alleged violation. The role of the 983
committee is limited to determining whether a violation exists 984
and whether to approve confirm or reject the fine or suspension 985
levied by the board. 986
(d) After the hearing, the committee shall provide written 987
notice to the parcel owner at his or her designated mailing or 988
e-mail address in the association's official records and, if 989
applicable, any occupant, licensee, or invitee of the parcel 990
owner, of the committee's findings related to the violation, 991
including any applicable fines or suspensions that the committee 992
approved or rejected, and how the parcel owner or any occupant, 993
licensee, or invitee of the parcel owner may cure the violation. 994
(e) Fines, suspensions, attorney fees, and costs are 995
imposed as follows: 996
1. If a violation is found by the committee, but is cured 997
before the hearing, a fine or suspension may not be imposed and 998
attorney fees and costs may not be awarded. 999
2. If a violation is found and the proposed fine or 1000
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suspension levied by the board is appr oved by the committee, the 1001
committee must decide, by majority vote, a date that the fine 1002
payment is due, which date must be at least 30 days after 1003
delivery of the written notice required in paragraph (d). 1004
3. If a violation is found and the proposed fine or 1005
suspension levied by the board is approved by the committee, but 1006
the violation is cured within 30 days after delivery of the 1007
written notice required in paragraph (d), the fine must be 1008
reduced by 50 percent, any applicable suspensions must be 1009
lifted, and attorney fees and costs may not be awarded. 1010
4. If a violation is found and the proposed fine or 1011
suspension levied by the board is approved by the committee and 1012
the violation is not cured or the fine is not paid within 30 1013
days after delivery of the writt en notice required in paragraph 1014
(d), reasonable attorney fees and costs may be awarded to the 1015
association. 1016
(f) A parcel owner or any occupant, licensee, or invitee 1017
of the parcel owner may, at any time, make a written request for 1018
a detailed accounting of any amounts he or she owes to the 1019
association and the board shall provide such information within 1020
10 days after receipt of the written request. Failure by the 1021
board to respond to a written request for a detailed accounting 1022
constitutes a complete waiver of the violation. 1023
(g) Upon receipt of a payment for any outstanding fines 1024
from a parcel owner or any occupant, licensee, or invitee of the 1025
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parcel owner, the board must apply the payment first to the fine 1026
before satisfying any other amounts due to the associ ation. 1027
Attorney fees and costs may not continue to accrue after a 1028
parcel owner or any occupant, licensee, or invitee of the parcel 1029
owner pays the fine. 1030
(h) A parcel owner or any occupant, licensee, or invitee 1031
of the parcel owner may request a hearing bef ore the board to 1032
dispute the reasonableness of the attorney fees and costs 1033
awarded to the association 5 days after notice of the approved 1034
fine is provided to the parcel owner and, if applicable, to any 1035
occupant, licensee, or invitee of the parcel owner. Th e 1036
association must provide written notice of such fine or 1037
suspension by mail or hand delivery to the parcel owner and, if 1038
applicable, to any occupant, licensee, or invitee of the parcel 1039
owner. 1040
(5) All suspensions imposed under pursuant to subsection 1041
(3) or subsection (4) must be approved at a properly noticed 1042
board meeting. Upon approval, the board association must send 1043
written notice to notify the parcel owner and, if applicable, 1044
the parcel's occupant, licensee, or invitee by mail or hand 1045
delivery to the parcel owner's designated mailing or e -mail 1046
address in the association's official records . 1047
(7) The failure of the association or committee to comply 1048
with this section constitutes a waiver of all fines or 1049
suspensions imposed or proposed for a violation. Any fines, 1050
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fees, or other costs incurred by a parcel owner or any occupant, 1051
licensee, or invitee of the parcel owner which is related to a 1052
fine that is waived under this subsection must also be waived or 1053
paid by the association if such fine, fee, or other cost is not 1054
waivable. 1055
Section 9. Paragraph (c) of subsection (1) of section 1056
720.306, Florida Statutes, is amended to read: 1057
720.306 Meetings of members; voting and election 1058
procedures; amendments. — 1059
(1) QUORUM; AMENDMENTS. — 1060
(c) An association may not modify or restrict the use of a 1061
parcel without amending its governing documents. Unless 1062
otherwise provided in the governing documents as originally 1063
recorded or permitted by this chapter or chapter 617, an 1064
amendment may not materially and adversely alte r the 1065
proportionate voting interest appurtenant to a parcel or 1066
increase the proportion or percentage by which a parcel shares 1067
in the common expenses of the association unless the record 1068
parcel owner and all record owners of liens on the parcels join 1069
in the execution of the amendment. For purposes of this section, 1070
a change in quorum requirements is not an alteration of voting 1071
interests. The merger or consolidation of one or more 1072
associations under a plan of merger or consolidation under part 1073
I of chapter 607 or chapter 617 is not a material or adverse 1074
alteration of the proportionate voting interest appurtenant to a 1075
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parcel. 1076
Section 10. Subsections (1) through (8) of section 1077
720.3085, Florida Statutes, are renumbered as subsections (2) 1078
through (9), respecti vely, paragraph (c) of present subsection 1079
(1), present subsection (5), and paragraph (a) of present 1080
subsection (8) are amended, and a new subsection (1) is added to 1081
that section, to read: 1082
720.3085 Priority of payments; payment for assessments; 1083
lien claims.— 1084
(1) An association must apply payments made by a parcel 1085
owner first to any outstanding amounts due as designated by the 1086
parcel owner on the payment instrument or otherwise in writing. 1087
If the parcel owner does not designate on the payment instrument 1088
or in writing to which outstanding amount the payment is for, 1089
the association must apply the payment to the parcel owner's 1090
outstanding amounts in the following order: 1091
(a) Regularly occurring assessments. 1092
(b) Special assessments. 1093
(c) Fines. 1094
(d) Interest. 1095
(e) Other fees or costs charged by the association to the 1096
parcel owner, including attorney fees and costs. 1097
(2)(1) When authorized by the governing documents, the 1098
association has a lien on each parcel to secure the payment of 1099
assessments and other amounts provided for by this section. 1100
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Except as otherwise set forth in this section, the lien is 1101
effective from and shall relate back to the date on which the 1102
original declaration of the community was recorded. However, as 1103
to first mortgages of record, the lien is effective from and 1104
after recording of a claim of lien in the public records of the 1105
county in which the parcel is located. This subsection does not 1106
bestow upon any lien, mortgage, or certified judgment of record 1107
on July 1, 2008, including the lien for unpaid assessments 1108
created in this section, a priority that, by law, the lien, 1109
mortgage, or judgment did not have before July 1, 2008. 1110
(c) A lien against a parcel is not foreclosable and will 1111
stay on the parcel until it is paid, settled, or released. The 1112
association may not bring an action in its name to foreclose a 1113
lien for assessments in the same manner in which a mortgage of 1114
real property is foreclosed . The association and may also bring 1115
an action to recover a money judgment for the unpaid assessme nts 1116
without waiving any claim of lien as long as the money judgment 1117
action is brought in the same lawsuit as the claim of lien . The 1118
association is entitled to recover its reasonable attorney 1119
attorney's fees incurred in an action to foreclose a lien or an 1120
action to recover a money judgment for unpaid assessments. 1121
(6)(5) The association may bring an action in its name to 1122
foreclose a lien for unpaid assessments secured by a lien in the 1123
same manner that a mortgage of real property is foreclosed and 1124
may also bring an action to recover a money judgment for the 1125
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unpaid assessments without waiving any claim of lien. The action 1126
to foreclose the lien may not be brought until 45 days after the 1127
parcel owner has been provided notice of the association's 1128
intent to foreclose and collect the unpaid amount. The notice 1129
must be given in the manner provided in paragraph (5)(b) (4)(b), 1130
and the notice may not be provided until the passage of the 45 1131
days required in paragraph (5)(a) (4)(a). The notice must be in 1132
substantially the following form: 1133
1134
DELINQUENT ASSESSMENT 1135
1136
This letter is to inform you a Claim of Lien has been filed 1137
against your property because you have not paid the ...(type of 1138
assessment)... assessment to ...(name of association).... The 1139
association intends to fo reclose the lien and collect the unpaid 1140
amount within 45 days of this letter being provided to you. 1141
1142
You owe the interest accruing from ...(month/year)... to the 1143
present. As of the date of this letter, the total amount due 1144
with interest is $..... All costs of any action and interest 1145
from this day forward will also be charged to your account. 1146
1147
Any questions concerning this matter should be directed to 1148
...(insert name, addresses, and telephone numbers of association 1149
representative).... 1150
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(a) The association m ay recover any interest, late 1151
charges, costs, and reasonable attorney attorney's fees incurred 1152
in a lien foreclosure action or in an action to recover a money 1153
judgment for the unpaid assessments. 1154
(b) The time limitations in this subsection do not apply 1155
if the parcel is subject to a foreclosure action or forced sale 1156
of another party, or if an owner of the parcel is a debtor in a 1157
bankruptcy proceeding. 1158
(9)(a)(8)(a) If the parcel is occupied by a tenant and the 1159
parcel owner is delinquent in paying any mone tary obligation due 1160
to the association, the association may demand that the tenant 1161
pay to the association the subsequent rental payments and 1162
continue to make such payments until all the monetary 1163
obligations of the parcel owner related to the parcel have be en 1164
paid in full to the association and the association releases the 1165
tenant or until the tenant discontinues tenancy in the parcel. 1166
1. The association must provide the tenant a notice, by 1167
hand delivery or United States mail, in substantially the 1168
following form: 1169
1170
Pursuant to section 720.3085(9) 720.3085(8), Florida 1171
Statutes, we demand that you make your rent payments 1172
directly to the homeowners' association and continue doing 1173
so until the association notifies you otherwise. 1174
Payment due the homeowners' association may be in the same 1175
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form as you paid your landlord and must be sent by United 1176
States mail or hand delivery to ...(full address)..., 1177
payable to ...(name).... 1178
Your obligation to pay your rent to the association begins 1179
immediately, unless you have already paid rent to your 1180
landlord for the current period before receiving this 1181
notice. In that case, you must provide the association 1182
written proof of your payment within 14 days after 1183
receiving this notice and your obligation to pay rent to 1184
the association would then begin with the next rental 1185
period. 1186
Pursuant to section 720.3085(9) 720.3085(8), Florida 1187
Statutes, your payment of rent to the association gives you 1188
complete immunity from any claim for the rent by your 1189
landlord. 1190
1191
2. A tenant is immune from any claim by the parcel owner 1192
related to the rent timely paid to the association after the 1193
association has made written demand. 1194
Section 11. Subsection (1) and paragraphs (a) and (b) of 1195
subsection (2) of section 720.311, Fl orida Statutes, are amended 1196
to read: 1197
720.311 Dispute resolution ; complaints alleging criminal 1198
activity.— 1199
(1)(a) The Legislature finds that alternative dispute 1200
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resolution has made progress in reducing court dockets and 1201
trials and in offering a more effi cient, cost-effective option 1202
to litigation. The filing of any petition for arbitration or the 1203
serving of a demand for presuit mediation as provided for in 1204
this section shall toll the applicable statute of limitations. 1205
Any recall dispute filed with the depa rtment under s. 1206
720.303(10) shall be conducted by the department in accordance 1207
with the provisions of ss. 718.112(2)(l) and 718.1255 and the 1208
rules adopted by the division. In addition, the department shall 1209
conduct binding arbitration of election disputes b etween a 1210
member and an association in accordance with s. 718.1255 and 1211
rules adopted by the division. Election disputes and recall 1212
disputes are not eligible for presuit mediation; these disputes 1213
must be arbitrated by the department or filed in a court of 1214
competent jurisdiction. At the conclusion of an arbitration 1215
proceeding, the department shall charge the parties a fee in an 1216
amount adequate to cover all costs and expenses incurred by the 1217
department in conducting the proceeding. Initially, the 1218
petitioner shall remit a filing fee of at least $200 to the 1219
department. The fees paid to the department shall become a 1220
recoverable cost in the arbitration proceeding, and the 1221
prevailing party in an arbitration proceeding shall recover its 1222
reasonable costs and attorney f ees in an amount found reasonable 1223
by the arbitrator. 1224
(b) The division must, within 72 hours after receiving a 1225
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complaint, review the complaint and determine whether the 1226
complaint, on its face, alleges any criminal activity. If the 1227
division determines tha t a complaint contains allegations of 1228
criminal activity, the division shall forward the complaint to 1229
the Department of Law Enforcement for investigation. 1230
(c) The department shall adopt rules to implement 1231
effectuate the purposes of this section. 1232
(2)(a) Disputes between an association and a parcel owner 1233
regarding violations, fines, suspensions, or use of or changes 1234
to the parcel or the common areas and other covenant enforcement 1235
disputes;, disputes regarding amendments to the association 1236
documents; disputes related to an alleged violation of the 1237
governing documents and any fines related to the alleged 1238
violation which subsequently are deemed covered assessments; 1239
and, disputes regarding meetings of the board and committees 1240
appointed by the board, membership meetings not including 1241
election meetings, and access to the official records of the 1242
association must shall be the subject of a demand for presuit 1243
mediation served by an aggrieved party before the dispute is 1244
filed in court. Presuit mediation proceedings mus t be conducted 1245
in accordance with the applicable Florida Rules of Civil 1246
Procedure, and these proceedings are privileged and confidential 1247
to the same extent as court -ordered mediation. Disputes not 1248
subject to presuit mediation under this section shall not 1249
include the collection of any regular or special assessment, 1250
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fine, or other financial obligation, including attorney's fees 1251
and costs, claimed to be due or any action to enforce a prior 1252
mediation settlement agreement between the parties. Also, in any 1253
dispute subject to presuit mediation under this section where 1254
emergency relief is required, a motion for temporary injunctive 1255
relief may be filed with the court without first complying with 1256
the presuit mediation requirements of this section. After any 1257
issues regarding emergency or temporary relief are resolved, the 1258
court may either refer the parties to a mediation program 1259
administered by the courts or require mediation under this 1260
section. An arbitrator or judge may not consider any information 1261
or evidence arising from the presuit mediation proceeding except 1262
in a proceeding to impose sanctions for failure to attend a 1263
presuit mediation session or to enforce a mediated settlement 1264
agreement. Persons who are not parties to the dispute may not 1265
attend the presuit mediati on conference without the consent of 1266
all parties, except for counsel for the parties and a corporate 1267
representative designated by the association. When mediation is 1268
attended by a quorum of the board, such mediation is not a board 1269
meeting for purposes of no tice and participation set forth in s. 1270
720.303. An aggrieved party shall serve on the responding party 1271
a written demand to participate in presuit mediation in 1272
substantially the following form: 1273
1274
STATUTORY OFFER TO PARTICIPATE 1275
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
IN PRESUIT MEDIATION 1276
1277
The alleged aggrieved party, ................, hereby 1278
demands that ................, as the responding 1279
party, engage in mandatory presuit mediation in 1280
connection with the following disputes, which by 1281
statute are of a type that are subject to presuit 1282
mediation: 1283
1284
(List specific nature of the dispute or disputes to be 1285
mediated and the authority supporting a finding of a 1286
violation as to each dispute.) 1287
1288
Pursuant to section 720.311, Florida Statutes, this 1289
demand to resolve the dispute through presuit 1290
mediation is required before a lawsuit can be filed 1291
concerning the dispute. Pursuant to the statute, the 1292
parties are required to engage in presuit mediation 1293
with a neutral third -party mediator in order to 1294
attempt to resolve this dispute without court action, 1295
and the aggrieved party demands that you likewise 1296
agree to this process. If you fail to participate in 1297
the mediation process, suit may be brought against you 1298
without further warning. 1299
1300
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
The process of mediation involves a supervised 1301
negotiation process in which a trained, neu tral third-1302
party mediator meets with both parties and assists 1303
them in exploring possible opportunities for resolving 1304
part or all of the dispute. By agreeing to participate 1305
in presuit mediation, you are not bound in any way to 1306
change your position. Furtherm ore, the mediator has no 1307
authority to make any decisions in this matter or to 1308
determine who is right or wrong and merely acts as a 1309
facilitator to ensure that each party understands the 1310
position of the other party and that all options for 1311
reasonable settlement are fully explored. 1312
1313
If an agreement is reached, it shall be reduced to 1314
writing and becomes a binding and enforceable 1315
commitment of the parties. A resolution of one or more 1316
disputes in this fashion avoids the need to litigate 1317
these issues in court. The failure to reach an 1318
agreement, or the failure of a party to participate in 1319
the process, results in the mediator declaring an 1320
impasse in the mediation, after which the aggrieved 1321
party may proceed to court on all outstanding, 1322
unsettled disputes. If you have failed or refused to 1323
participate in the entire mediation process, you will 1324
not be entitled to recover attorney attorney's fees, 1325
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
even if you prevail. 1326
1327
The aggrieved party has selected and hereby lists five 1328
certified mediators who we believe to be neutral and 1329
qualified to mediate the dispute. You have the right 1330
to select any one of these mediators. The fact that 1331
one party may be familiar with one or more of the 1332
listed mediators does not mean that the mediator 1333
cannot act as a neutral and impartial facilitato r. Any 1334
mediator who cannot act in this capacity is required 1335
ethically to decline to accept engagement. The 1336
mediators that we suggest, and their current hourly 1337
rates, are as follows: 1338
1339
(List the names, addresses, telephone numbers, and 1340
hourly rates of the me diators. Other pertinent 1341
information about the background of the mediators may 1342
be included as an attachment.) 1343
1344
You may contact the offices of these mediators to 1345
confirm that the listed mediators will be neutral and 1346
will not show any favoritism toward eithe r party. The 1347
Florida Supreme Court can provide you a list of 1348
certified mediators. 1349
1350
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
Unless otherwise agreed by the parties, section 1351
720.311(2)(b), Florida Statutes, requires that the 1352
parties share the costs of presuit mediation equally, 1353
including the fee ch arged by the mediator. An average 1354
mediation may require three to four hours of the 1355
mediator's time, including some preparation time, and 1356
the parties would need to share equally the mediator's 1357
fees as well as their own attorney attorney's fees if 1358
they choose to employ an attorney in connection with 1359
the mediation. However, use of an attorney is not 1360
required and is at the option of each party. The 1361
mediators may require the advance payment of some or 1362
all of the anticipated fees. The aggrieved party 1363
hereby agrees to pay or prepay one -half of the 1364
mediator's estimated fees and to forward this amount 1365
or such other reasonable advance deposits as the 1366
mediator requires for this purpose. Any funds 1367
deposited will be returned to you if these are in 1368
excess of your share of the fees incurred. 1369
1370
To begin your participation in presuit mediation to 1371
try to resolve the dispute and avoid further legal 1372
action, please sign below and clearly indicate which 1373
mediator is acceptable to you. We will then ask the 1374
mediator to schedule a mutu ally convenient time and 1375
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place for the mediation conference to be held. The 1376
mediation conference must be held within 90 days after 1377
ninety (90) days of this date, unless extended by 1378
mutual written agreement. In the event that you fail 1379
to respond within 45 20 days after from the date of 1380
this letter, or if you fail to agree to at least one 1381
of the mediators that we have suggested or to pay or 1382
prepay to the mediator one -half of the costs involved, 1383
the aggrieved party will be authorized to proceed with 1384
the filing of a lawsuit against you without further 1385
notice and may seek an award of attorney attorney's 1386
fees or costs incurred in attempting to obtain 1387
mediation. 1388
1389
Therefore, please give this matter your immediate 1390
attention. By law, your response must be mailed by 1391
certified mail, return receipt requested, and by 1392
first-class mail to the address shown on this demand. 1393
1394
........................ 1395
........................ 1396
1397
RESPONDING PARTY: YOUR SIGNATURE INDICATES YOUR 1398
AGREEMENT TO THAT CHOICE. 1399
1400
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
AGREEMENT TO MEDIATE 1401
1402
The undersigned hereby agrees to participate in 1403
presuit mediation and agrees to attend a mediation 1404
conducted by the following mediator or mediators who 1405
are listed above as someone who would be acceptable to 1406
mediate this dispute: 1407
1408
(List acceptable mediator or med iators.) 1409
1410
I/we further agree to pay or prepay one -half of the 1411
mediator's fees and to forward such advance deposits 1412
as the mediator may require for this purpose. 1413
1414
........................ 1415
Signature of responding party #1 1416
1417
........................ 1418
Telephone contact information 1419
1420
........................ 1421
Signature and telephone contact information of 1422
responding party #2 (if applicable)(if property is 1423
owned by more than one person, all owners must sign) 1424
1425
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(b) Service of the statutory demand to participate in 1426
presuit mediation is shall be effected by sending a letter in 1427
substantial conformity with the above form by certified mail, 1428
return receipt requested, with an additional copy being sent by 1429
regular first-class mail, to the address of the responding party 1430
as it last appears on the books and records of the association. 1431
The responding party has 45 20 days after from the date of the 1432
mailing of the statutory demand to serve a response to the 1433
aggrieved party in writing. The response must shall be served by 1434
certified mail, return receipt requested, with an additional 1435
copy being sent by regular first -class mail, to the address 1436
shown on the statutory demand. Notwithstanding the foregoing, 1437
once the parties have agreed on a mediator, the mediator ma y 1438
reschedule the mediation for a date and time mutually convenient 1439
to the parties. The parties shall share the costs of presuit 1440
mediation equally, including the fee charged by the mediator, if 1441
any, unless the parties agree otherwise, and the mediator may 1442
require advance payment of its reasonable fees and costs. The 1443
failure of any party to respond to a demand or response, to 1444
agree upon a mediator, to make payment of fees and costs within 1445
the time established by the mediator, or to appear for a 1446
scheduled mediation session without the approval of the 1447
mediator, constitutes shall constitute the failure or refusal to 1448
participate in the mediation process and operates shall operate 1449
as an impasse in the presuit mediation by such party, entitling 1450
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the other party to pr oceed in court and to seek an award of the 1451
costs and fees associated with the mediation. Additionally, 1452
notwithstanding the provisions of any other law or document, 1453
persons who fail or refuse to participate in the entire 1454
mediation process may not recover attorney attorney's fees and 1455
costs in subsequent litigation relating to the dispute. If any 1456
presuit mediation session cannot be scheduled and conducted 1457
within 90 days after the offer to participate in mediation was 1458
filed, an impasse is shall be deemed to have occurred unless 1459
both parties agree to extend this deadline. 1460
Section 12. Subsection (2) of section 720.402, Florida 1461
Statutes, is amended to read: 1462
720.402 Publication of false and misleading information. — 1463
(2) In any action for relief under this sec tion, the 1464
prevailing party may recover reasonable attorney attorney's 1465
fees. A developer may not expend association funds or reserves 1466
in the defense of any suit under this section. 1467
Section 13. Section 943.71, Florida Statutes, is created 1468
to read: 1469
943.71 Powers related to community associations. —In order 1470
to ensure that the rights of unit owners and parcel owners of 1471
community associations are protected and violations of the law 1472
are expeditiously resolved, the department has the authority to 1473
investigate complaints alleging violations of general law by: 1474
(1) A condominium association and its board of 1475
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administration, as those terms are defined in s. 718.103(2) and 1476
(4), respectively. 1477
(2) A cooperative association and its board of 1478
administration, as those t erms are defined in s. 719.103(2) and 1479
(3), respectively. 1480
(3) A homeowners' association as defined in s. 720.301 and 1481
its officers or board of directors. 1482
Section 14. This act shall take effect October 1, 2023. 1483