718.101
Short title
This chapter shall be known and may be cited as the
"Condominium Act."
History -- s. 1, ch. 76-222.
718.102 Purposes
The
purpose of this chapter is:
(1) To give statutory recognition to
the condominium form of ownership of real property.
(2) To establish procedures for the
creation, sale, and operation of condominiums.
Every condominium created and existing in this state shall be subject to
the provisions of this chapter.
History -- s. 1, ch. 76-222.
718.103
Definitions
As used in this chapter, the term:
(1) "Assessment" means a share
of the funds which are required for the payment of common expenses, which
from time to time is assessed against the unit owner.
(2) "Association"
means, in addition to any entity responsible for the operation of common
elements owned in undivided shares by unit owners, any entity which
operates or maintains other real property in which unit owners have use
rights, where membership in the entity is composed exclusively of unit
owners or their elected or appointed representatives and is a required
condition of unit ownership.
DECLARATORY
STATEMENT: Cozumel
Condominium Assoc., Inc. DECLARATORY
STATEMENT:
Old
Port Cove Property Owners Assoc. Inc. & Harbor Village Condominium
Assoc., Inc.
(3) "Association
property" means that property, real and personal, which is owned or
leased by, or is dedicated by a recorded plat to, the association for the
use and benefit of its members.
(4) "Board
of administration" or "board" means the board of directors
or other representative body which is responsible for administration of
the association.
(5) "Buyer"
means a person who purchases a condominium unit. The term
"purchaser" may be used interchangeably with the term
"buyer."
(6) "Bylaws"
means the bylaws of the association as they are amended from time to time.
(7) "Committee"
means a group of board members, unit owners, or board members and unit
owners appointed by the board or a member of the board to make
recommendations to the board regarding the proposed annual budget or to
take action on behalf of the board.
(8) "Common
elements" means the portions of the condominium property not included
in the units.
(9) "Common
expenses" means all expenses properly incurred by the association in
the performance of its duties, including expenses specified in s. 718.115.
DECLARATORY
STATEMENT: The
Sanctuary at Blue Heron Assoc., Inc.
(10) "Common
surplus" means the amount of all receipts or revenues, including
assessments, rents, or profits, collected by a condominium association
which exceeds common expenses.
(11) "Condominium"
means that form of ownership of real property created pursuant to this
chapter, which is comprised entirely of units that may be owned by one or
more persons, and in which there is, appurtenant to each unit, an
undivided share in common elements.
(12) "Condominium
parcel" means a unit, together with the undivided share in the common
elements appurtenant to the unit.
(13) "Condominium
property" means the lands, leaseholds, and personal property that are
subjected to condominium ownership, whether or not contiguous, and all
improvements thereon and all easements and rights appurtenant thereto
intended for use in connection with the condominium.
(14) "Conspicuous
type" means bold type in capital letters no smaller than the largest
type, exclusive of headings, on the page on which it appears and, in all
cases, at least 10-point type. Where conspicuous type is required, it must
be separated on all sides from other type and print. Conspicuous type may
be used in a contract for purchase and sale of a unit, a lease of a unit
for more than 5 years, or a prospectus or offering circular only where
required by law.
(15) "Declaration" or
"declaration of condominium" means the instrument or instruments
by which a condominium is created, as they are from time to time amended.
(16) As used in this chapter, the term:
“Developer” means a person who creates a condominium or offers condominium parcels for sale or lease in the ordinary course of business, but does not include:
(a) An owner or lessee of a condominium or cooperative unit who has acquired the unit for his or her own occupancy;
(b) A cooperative association that creates a condominium by conversion of an existing residential cooperative after control of the association has been transferred to the unit owners if, following the conversion, the unit owners are the same persons who were unit owners of the cooperative and no units are offered for sale or lease to the public as part of the plan of conversion;.
(c) A bulk assignee or bulk buyer as defined in s. 718.703; or
(d) A state, county, or municipal entity acting as a lessor and not otherwise named as a developer in the declaration of condominium.
(17) "Division" means
the Division of Florida Condominiums, Timeshares, and Mobile Homes of the
Department of Business and Professional Regulation.
(18) "Land" means the
surface of a legally described parcel of real property and includes,
unless otherwise specified in the declaration and whether separate from or
including such surface, airspace lying above and subterranean space lying
below such surface. However, if so defined in the declaration, the term
"land" may mean all or any portion of the airspace or
subterranean space between two legally identifiable elevations and may
exclude the surface of a parcel of real property and may mean any
combination of the foregoing, whether or not contiguous, or may mean a
condominium unit.
(19) "Limited common
elements" means those common elements which are reserved for the use
of a certain unit or units to the exclusion of all other units, as
specified in the declaration.
(20) "Multicondominium"
means a real estate development containing two or more condominiums, all
of which are operated by the same association.
(21) "Operation" or
"operation of the condominium" includes the administration and
management of the condominium property.
(22) "Rental
agreement" means any written agreement, or oral agreement if for less
duration than 1 year, providing for use and occupancy of premises.
(23) "Residential
condominium" means a condominium consisting of two or more units, any
of which are intended for use as a private temporary or permanent
residence, except that a condominium is not a residential condominium if
the use for which the units are intended is primarily commercial or
industrial and not more than three units are intended to be used for
private residence, and are intended to be used as housing for maintenance,
managerial, janitorial, or other operational staff of the condominium.
With respect to a condominium that is not a timeshare condominium, a
residential unit includes a unit intended as a private temporary or
permanent residence as well as a unit not intended for commercial or
industrial use. With respect to a timeshare condominium, the timeshare
instrument as defined in s. 721.05(35)
shall govern the intended use of each unit in the condominium. If a
condominium is a residential condominium but contains units intended to be
used for commercial or industrial purposes, then, with respect to those
units which are not intended for or used as private residences, the
condominium is not a residential condominium. A condominium which contains
both commercial and residential units is a mixed-use condominium and is
subject to the requirements of s. 718.404.
(24) "Special
assessment" means any assessment levied against a unit owner other
than the assessment required by a budget adopted annually.
(25) "Timeshare
estate" means any interest in a unit under which the exclusive right
of use, possession, or occupancy of the unit circulates among the various
purchasers of a timeshare plan pursuant to chapter 721 on a recurring
basis for a period of time.
(26) "Timeshare unit"
means a unit in which timeshare estates have been created.
(27) "Unit" means a
part of the condominium property which is subject to exclusive ownership.
A unit may be in improvements, land, or land and improvements together, as
specified in the declaration.
(28) "Unit owner" or
"owner of a unit" means a record owner of legal title to a
condominium parcel.
(29) "Voting
certificate" means a document which designates one of the record
title owners, or the corporate, partnership, or entity representative, who
is authorized to vote on behalf of a condominium unit that is owned by
more than one owner or by any entity.
(30) "Voting
interests" means the voting rights distributed to the association
members pursuant to s. 718.104(4)(j).
In a multicondominium association, the voting interests of the association
are the voting rights distributed to the unit owners in all condominiums
operated by the association. On matters related to a specific condominium
in a multicondominium association, the voting interests of the condominium
are the voting rights distributed to the unit owners in that condominium.
History -- s. 1, ch. 76-222; s. 1, ch. 78-328; s. 2, ch. 80-3; s. 6, ch. 80-323; s. 1, ch. 84-368; s. 45, ch. 85-62; s. 1, ch. 90-151; s. 1, ch. 91-103; s. 5, ch. 91-426; s. 1, ch. 92-49; s. 34, ch. 95-274; s. 850, ch. 97-102; s. 1, ch. 98-322; s. 73, ch. 99-3; s. 48, ch. 2000-302; s. 19, ch. 2001-64; s. 34, ch. 2004-279; s. 12, ch. 2004-353; s. 3, ch. 2007-80; s. 45, ch. 2008-240.
718.1035 Power of
attorney; compliance with chapter
The use of a power of attorney
that affects any aspect of the operation of a condominium shall be
subject to and in compliance with the provisions of this chapter and all
condominium documents, association rules and other rules adopted
pursuant to this chapter, and all other covenants, conditions, and
restrictions in force at the time of the execution of the power of
attorney.
History -- s. 4, ch. 86-175.
DECLARATORY
STATEMENT:Ocean
Dunes of Hutchinson Island Condominium Assoc., Inc.
718.104 Creation of
condominiums; contents of declaration
Every condominium created in
this state shall be created pursuant to this chapter.
(1) A condominium may be created on land owned in fee simple or held under a lease complying with the provisions of s. 718.401.
(2) A condominium is created by recording a declaration in the public records of the county where the land is located, executed and acknowledged with the requirements for a deed. All persons who have record title to the interest in the land being submitted to condominium ownership, or their lawfully authorized agents, must join in the execution of the declaration. Upon the recording of the declaration, or an amendment adding a phase to the condominium under s. 718.403(6), all units described in the declaration or phase amendment as being located in or on the land then being submitted to condominium ownership shall come into existence, regardless of the state of completion of planned improvements in which the units may be located or any other requirement or description that a declaration may provide. Upon recording the declaration of condominium pursuant to this section, the developer shall file the recording information with the division within 120 calendar days on a form prescribed by the division.
(3) All persons who have any record interest in any mortgage encumbering the interest in the land being submitted to condominium ownership must either join in the execution of the declaration or execute, with the requirements for deed, and record, a consent to the declaration or an agreement subordinating their mortgage interest to the declaration.
(4) The declaration must contain or provide for the following matters:
(a) A statement submitting the property to condominium ownership.
(b) The name by which the condominium property is to be identified, which shall include the word “condominium” or be followed by the words “a condominium.”
(c) The legal description of the land and, if a leasehold estate is submitted to condominium, an identification of the lease.
(d) An identification of each unit by letter, name, or number, or combination thereof, so that no unit bears the same designation as any other unit.
(e) A survey of
the land which meets the standards of practice established by the Board
of Professional Surveyors and Mappers, pursuant to s. 472.027, and a
graphic description of the improvements in which units are located and a
plot plan thereof that, together with the declaration, are in sufficient
detail to identify the common elements and each unit and their relative
locations and approximate dimensions. Failure of the survey to meet the
standards of practice does not invalidate an otherwise validly created
condominium. The survey, graphic description, and plot plan may be in
the form of exhibits consisting of building plans, floor plans, maps,
surveys, or sketches. If the construction of the condominium is not
substantially completed, there shall be a statement to that effect, and,
upon substantial completion of construction, the developer or the
association shall amend the declaration to include the certificate
described below. The amendment may be accomplished by referring to the
recording data of a survey of the condominium that complies with the
certificate. A certificate of a surveyor and mapper authorized to
practice in this state shall be included in or attached to the
declaration or the survey or graphic description as recorded under s.
718.105 that the construction of the improvements is substantially
complete so that the material, together with the provisions of the
declaration describing the condominium property, is an accurate
representation of the location and dimensions of the improvements and so
that the identification, location, and dimensions of the common elements
and of each unit can be determined from these materials. Completed units
within each substantially completed building in a condominium
development may be conveyed to purchasers, notwithstanding that other
buildings in the condominium are not substantially completed, provided
that all planned improvements, including, but not limited to,
landscaping, utility services and access to the unit, and common-element
facilities serving such building, as set forth in the declaration, are
first completed and the declaration of condominium is first recorded and
provided that as to the units being conveyed there is a certificate of a
surveyor and mapper as required above, including certification that all
planned improvements, including, but not limited to, landscaping,
utility services and access to the unit, and common-element facilities
serving the building in which the units to be conveyed are located have
been substantially completed, and such certificate is recorded with the
original declaration or as an amendment to such declaration. This
section does not, however, operate to require development of
improvements and amenities declared to be included in future phases
pursuant to s. 718.403 before conveying a unit as provided in this
paragraph. For the purposes of this section, a “certificate of a
surveyor and mapper” means certification by a surveyor and mapper in
the form provided in this paragraph and may include, along with
certification by a surveyor and mapper, when appropriate, certification
by an architect or engineer authorized to practice in this state.
Notwithstanding the requirements of substantial completion provided in
this section, this paragraph does not prohibit or impair the validity of
a mortgage encumbering units together with an undivided interest in the
common elements as described in a declaration of condominium recorded
before the recording of a certificate of a surveyor and mapper as
provided in this paragraph.
(f) The undivided share of ownership of the common elements and common surplus of the condominium that is appurtenant to each unit stated as a percentage or a fraction of the whole. In the declaration of condominium for residential condominiums created after April 1, 1992, the ownership share of the common elements assigned to each residential unit shall be based either upon the total square footage of each residential unit in uniform relationship to the total square footage of each other residential unit in the condominium or on an equal fractional basis.
(g) The percentage or fractional shares of liability for common expenses of the condominium, which, for all residential units, must be the same as the undivided shares of ownership of the common elements and common surplus appurtenant to each unit as provided for in paragraph (f).
(h) If a developer reserves the right, in a declaration recorded on or after July 1, 2000, to create a multicondominium, the declaration must state, or provide a specific formula for determining, the fractional or percentage shares of liability for the common expenses of the association and of ownership of the common surplus of the association to be allocated to the units in each condominium to be operated by the association. If a declaration recorded on or after July 1, 2000, for a condominium operated by a multicondominium association as originally recorded fails to so provide, the share of liability for the common expenses of the association and of ownership of the common surplus of the association allocated to each unit in each condominium operated by the association shall be a fraction of the whole, the numerator of which is the number “one” and the denominator of which is the total number of units in all condominiums operated by the association.
(i) The name of the association, which must be a corporation for profit or a corporation not for profit.
(j) Unit owners’ membership and voting rights in the association.
(k) The document or documents creating the association, which may be attached as an exhibit.
(l) A copy of the bylaws, which shall be attached as an exhibit. Defects or omissions in the bylaws shall not affect the validity of the condominium or title to the condominium parcels.
(m) Other desired provisions not inconsistent with this chapter.
(n) The creation of a nonexclusive easement for ingress and egress over streets, walks, and other rights-of-way serving the units of a condominium, as part of the common elements necessary to provide reasonable access to the public ways, or a dedication of the streets, walks, and other rights-of-way to the public. All easements for ingress and egress shall not be encumbered by any leasehold or lien other than those on the condominium parcels, unless:
1. Any such lien is subordinate to the rights of unit owners, or
2. The holder of any encumbrance or leasehold of any easement has executed and recorded an agreement that the use-rights of each unit owner will not be terminated as long as the unit owner has not been evicted because of a default under the encumbrance or lease, and the use-rights of any mortgagee of a unit who has acquired title to a unit may not be terminated.
(o) If timeshare estates will or may be created with respect to any unit in the condominium, a statement in conspicuous type declaring that timeshare estates will or may be created with respect to units in the condominium. In addition, the degree, quantity, nature, and extent of the timeshare estates that will or may be created shall be defined and described in detail in the declaration, with a specific statement as to the minimum duration of the recurring periods of rights of use, possession, or occupancy that may be created with respect to any unit.
(5) The declaration as originally recorded or as amended under the procedures provided therein may include covenants and restrictions concerning the use, occupancy, and transfer of the units permitted by law with reference to real property. However, the rule against perpetuities shall not defeat a right given any person or entity by the declaration for the purpose of allowing unit owners to retain reasonable control over the use, occupancy, and transfer of units.
(6) A person who joins in, or consents to the execution of, a declaration subjects his or her interest in the condominium property to the provisions of the declaration.
(7) All provisions of the declaration are enforceable equitable servitudes, run with the land, and are effective until the condominium is terminated.
History -- s. 1, ch. 76-222; s. 1, ch. 77-174; s. 2, ch. 78-328; s. 7, ch. 78-340; s. 1, ch. 79-314; s. 3, ch. 82-199; s. 2, ch. 84-368; s. 2, ch. 90-151; s. 2, ch. 91-103; ss. 1, 5, ch. 91-426; s. 122, ch. 94-119; s. 851, ch. 97-102; s. 1, ch. 98-195; s. 49, ch. 2000-302; s. 5, ch. 2002-27; s. 1, ch. 2013-122.
718.1045 Timeshare
estates; limitation on creation
No timeshare estates shall be
created with respect to any condominium unit except pursuant to
provisions in the declaration expressly permitting the creation of such
estates.
History -- s. 3, ch. 78-328.
718.105 Recording
of declaration (1) When executed as required by
s. 718.104, a declaration together with all exhibits and all amendments is
entitled to recordation as an agreement relating to the conveyance of
land.
(2) Graphic descriptions of
improvements constituting exhibits to a declaration, when accompanied by
the certificate of a surveyor required by s. 718.104, may be recorded as a
part of a declaration without approval of any public body or officer.
(3) The clerk of the circuit
court recording the declaration may, for his or her convenience, file the
exhibits of a declaration which contains graphic descriptions of
improvements in a separate book, and shall indicate the place of filing
upon the margin of the record of the declaration.
(4)(a) If the declaration does
not have the certificate or the survey or graphic description of the
improvements required under s. 718.104(4)(e), the developer shall deliver
therewith to the clerk an estimate, signed by a surveyor authorized to
practice in this state, of the cost of a final survey or graphic
description providing the certificate prescribed by s. 718.104(4)(e), and
shall deposit with the clerk the sum of money specified in the estimate.
(b) The clerk shall hold the
money until an amendment to the declaration is recorded that complies with
the certificate requirements of s. 718.104(4)(e). At that time, the clerk
shall pay to the person presenting the amendment to the declaration the
sum of money deposited, without making any charge for holding the sum,
receiving it, or paying out, other than the fees required for recording
the condominium documents.
(c) If the sum of money held by
the clerk has not been paid to the developer or association as provided in
paragraph (b) within 3 years after the date the declaration was originally
recorded, the clerk may notify, in writing, the registered agent of the
association that the sum is still available and the purpose for which it
was deposited. If the association does not record the certificate within
90 days after the clerk has given the notice, the clerk may disburse the
money to the developer. If the developer cannot be located, the clerk
shall disburse the money to the Division of Florida Condominiums,
Timeshares, and Mobile Homes for deposit in the Division of Florida
Condominiums, Timeshares, and Mobile Homes Trust Fund.
(5) When a declaration of
condominium is recorded pursuant to this section, a certificate or
receipted bill shall be filed with the clerk of the circuit court in the
county where the property is located showing that all taxes due and owing
on the property have been paid in full as of the date of recordation.
History -- s. 1, ch. 76-222; s. 1, ch. 77-174; s. 8, ch. 78-340; s. 3, ch. 90-151; s. 852, ch. 97-102; s. 1, ch. 99-350; s. 46, ch. 2008-240.
718.106 Condominium
parcels; appurtenances; possession and enjoyment (1) A condominium parcel created by the
declaration is a separate parcel of real property, even though the
condominium is created on a leasehold.
(2) There shall pass with a unit, as
appurtenances thereto:
(a) An undivided share in the common
elements and common surplus.
(b) The exclusive right to use such
portion of the common elements as may be provided by the declaration,
including the right to transfer such right to other units or unit owners
to the extent authorized by the declaration as originally recorded, or
amendments to the declaration adopted pursuant to the provisions
contained therein. Amendments to declarations of condominium providing
for the transfer of use rights with respect to limited common elements
are not amendments that materially modify unit appurtenances as
described in s. 718.110(4). However, in order to be effective, the
transfer of use rights with respect to limited common elements must be
effectuated in conformity with the procedures set forth in the
declaration as originally recorded or as amended under the procedures
provided therein. This section is intended to clarify existing law and
applies to associations existing on the effective date of this act.
DECLARATORY
STATEMENT:Waterview,
A Condominium
(c) An exclusive easement for the use
of the airspace occupied by the unit as it exists at any particular time
and as the unit may lawfully be altered or reconstructed from time to
time. An easement in airspace which is vacated shall be terminated
automatically.
(d) Membership in the association
designated in the declaration, with the full voting rights appertaining
thereto.
(e) Other appurtenances as may be
provided in the declaration.
(3) A unit owner is entitled to the
exclusive possession of his or her unit, subject to the provisions of s.
718.111(5). He or she is entitled to use the common elements in
accordance with the purposes for which they are intended, but no use may
hinder or encroach upon the lawful rights of other unit owners.
(4) When a unit is leased, a tenant
shall have all use rights in the association property and those common
elements otherwise readily available for use generally by unit owners
and the unit owner shall not have such rights except as a guest, unless
such rights are waived in writing by the tenant. Nothing in this
subsection shall interfere with the access rights of the unit owner as a
landlord pursuant to chapter 83. The association shall have the right to
adopt rules to prohibit dual usage by a unit owner and a tenant of
association property and common elements otherwise readily available for
use generally by unit owners.
(5) A local government may not adopt an
ordinance or regulation that prohibits condominium unit owners or their
guests, licensees, or invitees from pedestrian access to a public beach
contiguous to a condominium property, except where necessary to protect
public health, safety, or natural resources. This subsection does not
prohibit a governmental entity from enacting regulations governing
activities taking place on the beach.
History -- s. 1, ch. 76-222; s. 3, ch.
84-368; s. 4, ch. 90-151; s. 5, ch. 94-350; s. 853, ch. 97-102; s. 50,
ch. 2000-302; s. 6, ch. 2002-27; s. 2, ch. 2007-173.
718.107 Restraint
upon separation and partition of common elements
(1) The undivided share in the common
elements which is appurtenant to a unit shall not be separated from it
and shall pass with the title to the unit, whether or not separately
described.
(2) The share in the common elements
appurtenant to a unit cannot be conveyed or encumbered except together
with the unit.
(3) The shares in the common elements
appurtenant to units are undivided, and no action for partition of the
common elements shall lie.
History -- s. 1, ch. 76-222.
718.108 Common
elements (1) "Common elements"
includes within its meaning the following:
(a) The condominium property which is
not included within the units.
(b) Easements through units for
conduits, ducts, plumbing, wiring, and other facilities for the
furnishing of utility services to units and the common elements.
(c) An easement of support in every
portion of a unit which contributes to the support of a building.
(d) The property and installations
required for the furnishing of utilities and other services to more than
one unit or to the common elements.
(2) The declaration may designate other
parts of the condominium property as common elements.
History -- s. 1, ch. 76-222.
718.1085 Certain
regulations not to be retroactively applied
Notwithstanding the
provisions of chapter 633 or of any other code, statute, ordinance,
administrative rule, or regulation, or any interpretation thereof, an
association, condominium, or unit owner is not obligated to retrofit the
common elements or units of a residential condominium that meets the
definition of "housing for older persons" in s. 760.29(4)(b)3.
to comply with requirements relating to handrails and guardrails if the
unit owners have voted to forego such retrofitting by the affirmative
vote of two-thirds of all voting interests in the affected condominium.
However, a condominium association may not vote to forego the
retrofitting in common areas in a high-rise building. For the purposes
of this section, the term "high-rise building" means a
building that is greater than 75 feet in height where the building
height is measured from the lowest level of fire department access to
the floor of the highest occupiable level. For the purposes of this
section, the term "common areas" means stairwells and exposed,
outdoor walkways and corridors. In no event shall the local authority
having jurisdiction require retrofitting of common areas with handrails
and guardrails before the end of 2014.
(1) A vote to forego retrofitting may
not be obtained by general proxy or limited proxy, but shall be obtained
by a vote personally cast at a duly called membership meeting, or by
execution of a written consent by the member, and shall be effective
upon the recording of a certificate attesting to such vote in the public
records of the county where the condominium is located. The association
shall provide each unit owner written notice of the vote to forego
retrofitting of the required handrails or guardrails, or both, in at
least 16-point bold type, by certified mail, within 20 days after the
association's vote. After such notice is provided to each owner, a copy
of such notice shall be provided by the current owner to a new owner
prior to closing and shall be provided by a unit owner to a renter prior
to signing a lease.
(2) As part of the information
collected annually from condominiums, the division shall require
condominium associations to report the membership vote and recording of
a certificate under this subsection and, if retrofitting has been
undertaken, the per-unit cost of such work. The division shall annually
report to the Division of State Fire Marshal of the Department of
Financial Services the number of condominiums that have elected to
forego retrofitting.
History -- s. 1, ch. 2004-80.
718.109 Legal
description of condominium parcels
Following the recording of the
declaration, a description of a condominium parcel by the number or
other designation by which the unit is identified in the declaration,
together with the recording data identifying the declaration, shall be a
sufficient legal description for all purposes. The description includes
all appurtenances to the unit concerned, whether or not separately
described, including, but not limited to, the undivided share in the
common elements appurtenant thereto.
History -- s. 1, ch. 76-222.
718.110 Amendment
of declaration; correction of error or omission in declaration by
circuit court
DECLARATORY
STATEMENT: Smuggler's
Landing at Cortez Condominium Assoc., Inc
(1)(a) If the declaration fails to
provide a method of amendment, the declaration may be amended as to all
matters except those described in subsection (4) or subsection (8) if
the amendment is approved by the owners of not less than two-thirds of
the units. Except as to those matters described in subsection (4) or
subsection (8), no declaration recorded after April 1, 1992, shall
require that amendments be approved by more than four-fifths of the
voting interests.
(b) No provision of the declaration
shall be revised or amended by reference to its title or number only.
Proposals to amend existing provisions of the declaration shall contain
the full text of the provision to be amended; new words shall be
inserted in the text and underlined; and words to be deleted shall be
lined through with hyphens. However, if the proposed change is so
extensive that this procedure would hinder, rather than assist, the
understanding of the proposed amendment, it is not necessary to use
underlining and hyphens as indicators of words added or deleted, but,
instead, a notation must be inserted immediately preceding the proposed
amendment in substantially the following language: "Substantial
rewording of declaration. See provision _____ for present text."
(c) Nonmaterial errors or omissions in
the amendment process will not invalidate an otherwise properly
promulgated amendment.
(2) An amendment, other than amendments
made by the developer pursuant to ss. 718.104, 718.403, and 718.504(6),
(7), and (9) without a vote of the unit owners and any rights the
developer may have in the declaration to amend without consent of the
unit owners which shall be limited to matters other than those under
subsections (4) and (8), shall be evidenced by a certificate of the
association which shall include the recording data identifying the
declaration and shall be executed in the form required for the execution
of a deed. An amendment by the developer must be evidenced in writing,
but a certificate of the association is not required. The developer of a
timeshare condominium may reserve specific rights in the declaration to
amend the declaration without the consent of the unit owners.
(3) An amendment of a declaration is
effective when properly recorded in the public records of the county
where the declaration is recorded.
(4) Unless otherwise provided in the
declaration as originally recorded, no amendment may change the
configuration or size of any unit in any material fashion, materially
alter or modify the appurtenances to the unit, or change the proportion
or percentage by which the unit owner shares the common expenses of the
condominium and owns the common surplus of the condominium unless the
record owner of the unit and all record owners of liens on the unit join
in the execution of the amendment and unless all the record owners of
all other units in the same condominium approve the amendment. The
acquisition of property by the association and material alterations or
substantial additions to such property or the common elements by the
association in accordance with s. 718.111(7) or s. 718.113, and
amendments providing for the transfer of use rights in limited common
elements pursuant to s. 718.106(2)(b) shall not be deemed to constitute
a material alteration or modification of the appurtenances to the units.
A declaration recorded after April 1, 1992, may not require the approval
of less than a majority of total voting interests of the condominium for
amendments under this subsection, unless otherwise required by a
governmental entity.
DECLARATORY
STATEMENT: Princess
Del Mar Condominium Owners Assoc., Inc.
DECLARATORY
STATEMENT: Altamira
at N. Hutchinson Island Condominium Assoc., Inc.
(5) If it appears that through a
scrivener's error a unit has not been designated as owning an
appropriate undivided share of the common elements or does not bear an
appropriate share of the common expenses or that all the common expenses
or interest in the common surplus or all of the common elements in the
condominium have not been distributed in the declaration, so that the
sum total of the shares of common elements which have been distributed
or the sum total of the shares of the common expenses or ownership of
common surplus fails to equal 100 percent, or if it appears that more
than 100 percent of common elements or common expenses or ownership of
the common surplus have been distributed, the error may be corrected by
filing an amendment to the declaration approved by the board of
administration or a majority of the unit owners.
(6) The common elements designated by
the declaration may be enlarged by an amendment to the declaration. The
amendment must describe the interest in the property and must submit the
property to the terms of the declaration. The amendment must be approved
and executed as provided in this section. The amendment divests the
association of title to the land and vests title in the unit owners as
part of the common elements, without naming them and without further
conveyance, in the same proportion as the undivided shares in the common
elements that are appurtenant to the unit owned by them.
(7) The declarations, bylaws, and
common elements of two or more independent condominiums of a single
complex may be merged to form a single condominium, upon the approval of
such voting interest of each condominium as is required by the
declaration for modifying the appurtenances to the units or changing the
proportion or percentages by which the owners of the parcel share the
common expenses and own the common surplus; upon the approval of all
record owners of liens; and upon the recording of new or amended
articles of incorporation, declarations, and bylaws.
(8) Unless otherwise provided in the
declaration as originally recorded, no amendment to the declaration may
permit timeshare estates to be created in any unit of the condominium,
unless the record owner of each unit of the condominium and the record
owners of liens on each unit of the condominium join in the execution of
the amendment.
(9) If there is an omission or error in
a declaration, or in any other document required by law to establish the
condominium, the association may correct the error or omission by an
amendment to the declaration or to the other document required to create
a condominium in the manner provided in the declaration to amend the
declaration or, if none is provided, by vote of a majority of the voting
interests of the condominium. The amendment is effective when passed and
approved and a certificate of amendment is executed and recorded as
provided in subsections (2) and (3). This procedure for amendment cannot
be used if such an amendment would materially or adversely affect
property rights of unit owners, unless the affected unit owners consent
in writing. This subsection does not restrict the powers of the
association to otherwise amend the declaration, or other documentation,
but authorizes a simple process of amendment requiring a lesser vote for
the purpose of curing defects, errors, or omissions when the property
rights of unit owners are not materially or adversely affected.
(10) If there is an omission or error
in a declaration of condominium, or any other document required to
establish the condominium, which omission or error would affect the
valid existence of the condominium, the circuit court has jurisdiction
to entertain a petition of one or more of the unit owners in the
condominium, or of the association, to correct the error or omission,
and the action may be a class action. The court may require that one or
more methods of correcting the error or omission be submitted to the
unit owners to determine the most acceptable correction. All unit
owners, the association, and the mortgagees of a first mortgage of
record must be joined as parties to the action. Service of process on
unit owners may be by publication, but the plaintiff must furnish every
unit owner not personally served with process with a copy of the
petition and final decree of the court by certified mail, return receipt
requested, at the unit owner's last known residence address. If an
action to determine whether the declaration or another condominium
document complies with the mandatory requirements for the formation of a
condominium is not brought within 3 years of the recording of the
declaration, the declaration and other documents shall be effective
under this chapter to create a condominium, as of the date the
declaration was recorded, whether or not the documents substantially
comply with the mandatory requirements of law. However, both before and
after the expiration of this 3-year period, the circuit court has
jurisdiction to entertain a petition permitted under this subsection for
the correction of the documentation, and other methods of amendment may
be utilized to correct the errors or omissions at any time.
(11) The Legislature finds that the
procurement of mortgagee consent to amendments that do not affect the
rights or interests of mortgagees is an unreasonable and substantial
logistical and financial burden on the unit owners and that there is a
compelling state interest in enabling the members of a condominium
association to approve amendments to the condominium documents through
legal means. Accordingly, and notwithstanding any provision to the
contrary contained in this section:
(a) As to any mortgage recorded on or
after October 1, 2007, any provision in the declaration, articles of
incorporation, or bylaws that requires the consent or joinder of some or
all mortgagees of units or any other portion of the condominium property
to or in amendments to the declaration, articles of incorporation, or
bylaws or for any other matter shall be enforceable only as to the
following matters:
1. Those matters described in
subsections (4) and (8).
2. Amendments to the declaration,
articles of incorporation, or bylaws that adversely affect the priority
of the mortgagee's lien or the mortgagee's rights to foreclose its lien
or that otherwise materially affect the rights and interests of the
mortgagees.
(b) As to mortgages recorded before
October 1, 2007, any existing provisions in the declaration, articles of
incorporation, or bylaws requiring mortgagee consent shall be
enforceable.
(c) In securing consent or joinder, the
association shall be entitled to rely upon the public records to
identify the holders of outstanding mortgages. The association may use
the address provided in the original recorded mortgage document, unless
there is a different address for the holder of the mortgage in a
recorded assignment or modification of the mortgage, which recorded
assignment or modification must reference the official records book and
page on which the original mortgage was recorded. Once the association
has identified the recorded mortgages of record, the association shall,
in writing, request of each unit owner whose unit is encumbered by a
mortgage of record any information the owner has in his or her
possession regarding the name and address of the person to whom mortgage
payments are currently being made. Notice shall be sent to such person
if the address provided in the original recorded mortgage document is
different from the name and address of the mortgagee or assignee of the
mortgage as shown by the public record. The association shall be deemed
to have complied with this requirement by making the written request of
the unit owners required under this paragraph. Any notices required to
be sent to the mortgagees under this paragraph shall be sent to all
available addresses provided to the association.
(d) Any notice to the mortgagees
required under paragraph (c) may be sent by a method that establishes
proof of delivery, and any mortgagee who fails to respond within 60 days
after the date of mailing shall be deemed to have consented to the
amendment.
(e) For those amendments requiring
mortgagee consent on or after October 1, 2007, in the event mortgagee
consent is provided other than by properly recorded joinder, such
consent shall be evidenced by affidavit of the association recorded in
the public records of the county where the declaration is recorded. Any
amendment adopted without the required consent of a mortgagee shall be
voidable only by a mortgagee who was entitled to notice and an
opportunity to consent. An action to void an amendment shall be subject
to the statute of limitations beginning 5 years after the date of
discovery as to the amendments described in subparagraphs (a)1. and 2.
and 5 years after the date of recordation of the certificate of
amendment for all other amendments. This provision shall apply to all
mortgages, regardless of the date of recordation of the mortgage.
(f) Notwithstanding the provisions of
this section, any amendment or amendments to conform a declaration of
condominium to the insurance coverage provisions in s. 718.111(11) may
be made as provided in that section.
(12)(a) With respect to an existing
multicondominium association, any amendment to change the fractional or
percentage share of liability for the common expenses of the association
and ownership of the common surplus of the association must be approved
by at least a majority of the total voting interests of each condominium
operated by the association unless the declarations of all condominiums
operated by the association uniformly require approval by a greater
percentage of the voting interests of each condominium.
(b) Unless approval by a greater
percentage of the voting interests of an existing multicondominium
association is expressly required in the declaration of an existing
condominium, the declaration may be amended upon approval of at least a
majority of the total voting interests of each condominium operated by
the multicondominium association for the purpose of:
1. Setting forth in the declaration the
formula currently utilized, but not previously stated in the
declaration, for determining the percentage or fractional shares of
liability for the common expenses of the multicondominium association
and ownership of the common surplus of the multicondominium association.
2. Providing for the creation or
enlargement of a multicondominium association by the merger or
consolidation of two or more associations and changing the name of the
association, as appropriate.
(13) An amendment prohibiting unit owners from renting their units or altering the duration of the rental term or specifying or limiting the number of times unit owners are entitled to rent their units during a specified period applies only to unit owners who consent to the amendment and unit owners who acquire title to their units after the effective date of that amendment.
(14) Except for those portions of the common elements designed and intended to be used by all unit owners, a portion of the common elements serving only one unit or a group of units may be reclassified as a limited common element upon the vote required to amend the declaration as provided therein or as required under paragraph (1)(a), and shall not be considered an amendment pursuant to subsection (4). This is a clarification of existing law.
History -- s. 1, ch. 76-222; s. 8, ch.
77-221; s. 6, ch. 77-222; s. 5, ch. 78-328; s. 2, ch. 78-340; s. 4, ch.
84-368; s. 5, ch. 90-151; s. 3, ch. 91-103; ss. 2, 5, ch. 91-426; s. 51,
ch. 2000-302; s. 7, ch. 2002-27; s. 24, ch. 2004-345; s. 1, ch.
2004-353; s. 3, ch. 2007-173.
718.111 THE
ASSOCIATION (1) CORPORATE
ENTITY
(a) The operation of the condominium shall be by the association, which must be a Florida corporation for profit or a Florida corporation not for profit. However, any association which was in existence on January 1, 1977, need not be incorporated. The owners of units shall be shareholders or members of the association. The officers and directors of the association have a fiduciary relationship to the unit owners. It is the intent of the Legislature that nothing in this paragraph shall be construed as providing for or removing a requirement of a fiduciary relationship between any manager employed by the association and the unit owners. An officer, director, or manager may not solicit, offer to accept, or accept any thing or service of value for which consideration has not been provided for his or her own benefit or that of his or her immediate family, from any person providing or proposing to provide goods or services to the association. Any such officer, director, or manager who knowingly so solicits, offers to accept, or accepts any thing or service of value is subject to a civil penalty pursuant to s. 718.501(1)(d). However, this paragraph does not prohibit an officer, director, or manager from accepting services or items received in connection with trade fairs or education programs. An association may operate more than one condominium.
(b) A director of the association who is present at a meeting of its board at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless he or she votes against such action or abstains from voting. A director of the association who abstains from voting on any action taken on any corporate matter shall be presumed to have taken no position with regard to the action. Directors may not vote by proxy or by secret ballot at board meetings, except that officers may be elected by secret ballot. A vote or abstention for each member present shall be recorded in the minutes.
(c) A unit owner does not have any authority to act for the association by reason of being a unit owner.
(d) As required by s. 617.0830, an officer, director, or agent shall discharge his or her duties in good faith, with the care an ordinarily prudent person in a like position would exercise under similar circumstances, and in a manner he or she reasonably believes to be in the interests of the association. An officer, director, or agent shall be liable for monetary damages as provided in s. 617.0834 if such officer, director, or agent breached or failed to perform his or her duties and the breach of, or failure to perform, his or her duties constitutes a violation of criminal law as provided in s. 617.0834; constitutes a transaction from which the officer or director derived an improper personal benefit, either directly or indirectly; or constitutes recklessness or an act or omission that was in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.
(2) POWERS AND DUTIES
The
powers and duties of the association include those set forth in this
section and, except as expressly limited or restricted in this chapter,
those set forth in the declaration and bylaws and part I of chapter 607
and chapter 617, as applicable.
(3) POWER TO MANAGE CONDOMINIUM PROPERTY AND TO CONTRACT, SUE, AND BE
SUED
The association may contract, sue, or be sued with respect to the exercise or nonexercise of its powers. For these purposes, the powers of the association include, but are not limited to, the maintenance, management, and operation of the condominium property. After control of the association is obtained by unit owners other than the developer, the association may institute, maintain, settle, or appeal actions or hearings in its name on behalf of all unit owners concerning matters of common interest to most or all unit owners, including, but not limited to, the common elements; the roof and structural components of a building or other improvements; mechanical, electrical, and plumbing elements serving an improvement or a building; representations of the developer pertaining to any existing or proposed commonly used facilities; and protesting ad valorem taxes on commonly used facilities and on units; and may defend actions in eminent domain or bring inverse condemnation actions. If the association has the authority to maintain a class action, the association may be joined in an action as representative of that class with reference to litigation and disputes involving the matters for which the association could bring a class action. Nothing herein limits any statutory or common-law right of any individual unit owner or class of unit owners to bring any action without participation by the association which may otherwise be available.
(4) ASSESSMENTS; MANAGEMENT OF COMMON ELEMENTS
The association has the power to make and collect assessments and to lease, maintain, repair, and replace the common elements or association property; however, the association may not charge a use fee against a unit owner for the use of common elements or association property unless otherwise provided for in the declaration of condominium or by a majority vote of the association or unless the charges relate to expenses incurred by an owner having exclusive use of the common elements or association property.
(5) RIGHT OF ACCESS TO UNITS
(a)
The association has the irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit or units.
(b) 1. In
addition to the association’s right of access in paragraph (a) and
regardless of whether authority is provided in the declaration or other
recorded condominium documents, an association, at the sole discretion
of the board, may enter an abandoned unit to inspect the unit and
adjoining common elements; make repairs to the unit or to the common
elements serving the unit, as needed; repair the unit if mold or
deterioration is present; turn on the utilities for the unit; or
otherwise maintain, preserve, or protect the unit and adjoining common
elements. For purposes of this paragraph, a unit is presumed to be
abandoned if:
a. The
unit is the subject of a foreclosure action and no tenant appears to
have resided in the unit for at least 4 continuous weeks without prior
written notice to the association; or
b. No
tenant appears to have resided in the unit for 2 consecutive months
without prior written notice to the association, and the association
is unable to contact the owner or determine the whereabouts of the
owner after reasonable inquiry.
2. Except
in the case of an emergency, an association may not enter an abandoned
unit until 2 days after notice of the association’s intent to enter
the unit has been mailed or hand-delivered to the owner at the address
of the owner as reflected in the records of the association. The notice
may be given by electronic transmission to unit owners who previously
consented to receive notice by electronic transmission.
3. Any
expense incurred by an association pursuant to this paragraph is
chargeable to the unit owner and enforceable as an assessment pursuant
to s. 718.116, and the association may use its lien authority provided
by s. 718.116 to enforce collection of the expense.
4. The
association may petition a court of competent jurisdiction to appoint a
receiver to lease out an abandoned unit for the benefit of the
association to offset against the rental income the association’s
costs and expenses of maintaining, preserving, and protecting the unit
and the adjoining common elements, including the costs of the
receivership and all unpaid assessments, interest, administrative late
fees, costs, and reasonable attorney fees.
(6) OPERATION OF CONDOMINIUMS CREATED PRIOR TO 1977
Notwithstanding any provision of this chapter, an association may operate two or more residential condominiums in which the initial condominium declaration was recorded prior to January 1, 1977, and may continue to so operate such condominiums as a single condominium for purposes of financial matters, including budgets, assessments, accounting, recordkeeping, and similar matters, if provision is made for such consolidated operation in the applicable declarations of each such condominium or in the bylaws. An association for such condominiums may also provide for consolidated financial operation as described in this section either by amending its declaration pursuant to s. 718.110(1)(a) or by amending its bylaws and having the amendment approved by not less than two-thirds of the total voting interests. Notwithstanding any provision in this chapter, common expenses for residential condominiums in such a project being operated by a single association may be assessed against all unit owners in such project pursuant to the proportions or percentages established therefor in the declarations as initially recorded or in the bylaws as initially adopted, subject, however, to the limitations of ss. 718.116 and 718.302.
(7) TITLE TO PROPERTY
(a) The association has the power to acquire title to property or otherwise hold, convey, lease, and mortgage association property for the use and benefit of its members. The power to acquire personal property shall be exercised by the board of administration. Except as otherwise permitted in subsections (8) and (9) and in s. 718.114, no association may acquire, convey, lease, or mortgage association real property except in the manner provided in the declaration, and if the declaration does not specify the procedure, then approval of 75 percent of the total voting interests shall be required.
(b) Subject to the provisions of s. 718.112(2)(m), the association, through its board, has the limited power to convey a portion of the common elements to a condemning authority for the purposes of providing utility easements, right-of-way expansion, or other public purposes, whether negotiated or as a result of eminent domain proceedings.
(8) PURCHASE OF LEASES.—The association has the power to purchase any land or recreation lease, subject to the same manner of approval as in s. 718.114 for the acquisition of leaseholds.
(9) PURCHASE OF UNITS.—The association has the power, unless prohibited by the declaration, articles of incorporation, or bylaws of the association, to purchase units in the condominium and to acquire and hold, lease, mortgage, and convey them. There shall be no limitation on the association’s right to purchase a unit at a foreclosure sale resulting from the association’s foreclosure of its lien for unpaid assessments, or to take title by deed in lieu of foreclosure.
(10) EASEMENTS
Unless prohibited by the declaration, the board of administration has the authority, without the joinder of any unit owner, to grant, modify, or move any easement if the easement constitutes part of or crosses the common elements or association property. This subsection does not authorize the board of administration to modify, move, or vacate any easement created in whole or in part for the use or benefit of anyone other than the unit owners, or crossing the property of anyone other than the unit owners, without the consent or approval of those other persons having the use or benefit of the easement, as required by law or by the instrument creating the easement. Nothing in this subsection affects the minimum requirements of s. 718.104(4)(n) or the powers enumerated in subsection (3).
(11) INSURANCE
In order to protect the safety, health, and welfare of the people of the State of Florida and to ensure consistency in the provision of insurance coverage to condominiums and their unit owners, this subsection applies to every residential condominium in the state, regardless of the date of its declaration of condominium. It is the intent of the Legislature to encourage lower or stable insurance premiums for associations described in this subsection.
(a) Adequate property insurance, regardless of any requirement in the declaration of condominium for coverage by the association for full insurable value, replacement cost, or similar coverage, must be based on the replacement cost of the property to be insured as determined by an independent insurance appraisal or update of a prior appraisal. The replacement cost must be determined at least once every 36 months.
1. An association or group of associations may provide adequate property insurance through a self-insurance fund that complies with the requirements of ss. 624.460-624.488.
2. The association may also provide adequate property insurance coverage for a group of at least three communities created and operating under this chapter, chapter 719, chapter 720, or chapter 721 by obtaining and maintaining for such communities insurance coverage sufficient to cover an amount equal to the probable maximum loss for the communities for a 250-year windstorm event. Such probable maximum loss must be determined through the use of a competent model that has been accepted by the Florida Commission on Hurricane Loss Projection Methodology. A policy or program providing such coverage may not be issued or renewed after July 1, 2008, unless it has been reviewed and approved by the Office of Insurance Regulation. The review and approval must include approval of the policy and related forms pursuant to ss. 627.410 and 627.411, approval of the rates pursuant to s. 627.062, a determination that the loss model approved by the commission was accurately and appropriately applied to the insured structures to determine the 250-year probable maximum loss, and a determination that complete and accurate disclosure of all material provisions is provided to condominium unit owners before execution of the agreement by a condominium association.
3. When determining the adequate amount of property insurance coverage, the association may consider deductibles as determined by this subsection.
(b) If an association is a developer-controlled association, the association shall exercise its best efforts to obtain and maintain insurance as described in paragraph (a). Failure to obtain and maintain adequate property insurance during any period of developer control constitutes a breach of fiduciary responsibility by the developer-appointed members of the board of directors of the association, unless the members can show that despite such failure, they have made their best efforts to maintain the required coverage.
(c) Policies may include deductibles as determined by the board.
1. The deductibles must be consistent with industry standards and prevailing practice for communities of similar size and age, and having similar construction and facilities in the locale where the condominium property is situated.
2. The deductibles may be based upon available funds, including reserve accounts, or predetermined assessment authority at the time the insurance is obtained.
3. The board shall establish the amount of deductibles based upon the level of available funds and predetermined assessment authority at a meeting of the board in the manner set forth in s. 718.112(2)(e).
(d) An association controlled by unit owners operating as a residential condominium shall use its best efforts to obtain and maintain adequate property insurance to protect the association, the association property, the common elements, and the condominium property that must be insured by the association pursuant to this subsection.
(e) The declaration of condominium as originally recorded, or as amended pursuant to procedures provided therein, may provide that condominium property consisting of freestanding buildings comprised of no more than one building in or on such unit need not be insured by the association if the declaration requires the unit owner to obtain adequate insurance for the condominium property. An association may also obtain and maintain liability insurance for directors and officers, insurance for the benefit of association employees, and flood insurance for common elements, association property, and units.
(f) Every property insurance policy issued or renewed on or after January 1, 2009, for the purpose of protecting the condominium must provide primary coverage for:
1. All portions of the condominium property as originally installed or replacement of like kind and quality, in accordance with the original plans and specifications.
2. All alterations or additions made to the condominium property or association property pursuant to s. 718.113(2).
3. The coverage must exclude all personal property within the unit or limited common elements, and floor, wall, and ceiling coverings, electrical fixtures, appliances, water heaters, water filters, built-in cabinets and countertops, and window treatments, including curtains, drapes, blinds, hardware, and similar window treatment components, or replacements of any of the foregoing which are located within the boundaries of the unit and serve only such unit. Such property and any insurance thereupon is the responsibility of the unit owner.
(g) A condominium unit owner’s policy must conform to the requirements of s. 627.714.
1. All reconstruction work after a property loss must be undertaken by the association except as otherwise authorized in this section. A unit owner may undertake reconstruction work on portions of the unit with the prior written consent of the board of administration. However, such work may be conditioned upon the approval of the repair methods, the qualifications of the proposed contractor, or the contract that is used for that purpose. A unit owner must obtain all required governmental permits and approvals before commencing reconstruction.
2. Unit owners are responsible for the cost of reconstruction of any portions of the condominium property for which the unit owner is required to carry property insurance, or for which the unit owner is responsible under paragraph (j), and the cost of any such reconstruction work undertaken by the association is chargeable to the unit owner and enforceable as an assessment and may be collected in the manner provided for the collection of assessments pursuant to s. 718.116.
3. A multicondominium association may elect, by a majority vote of the collective members of the condominiums operated by the association, to operate the condominiums as a single condominium for purposes of insurance matters, including, but not limited to, the purchase of the property insurance required by this section and the apportionment of deductibles and damages in excess of coverage. The election to aggregate the treatment of insurance premiums, deductibles, and excess damages constitutes an amendment to the declaration of all condominiums operated by the association, and the costs of insurance must be stated in the association budget. The amendments must be recorded as required by s. 718.110.
(h) The association shall maintain insurance or fidelity bonding of all persons who control or disburse funds of the association. The insurance policy or fidelity bond must cover the maximum funds that will be in the custody of the association or its management agent at any one time. As used in this paragraph, the term “persons who control or disburse funds of the association” includes, but is not limited to, those individuals authorized to sign checks on behalf of the association, and the president, secretary, and treasurer of the association. The association shall bear the cost of any such bonding.
(i) The association may amend the declaration of condominium without regard to any requirement for approval by mortgagees of amendments affecting insurance requirements for the purpose of conforming the declaration of condominium to the coverage requirements of this subsection.
(j) Any portion of
the condominium property that must be insured by the association against
property loss pursuant to paragraph (f) which is damaged by an insurable
event shall be reconstructed, repaired, or replaced as necessary by the
association as a common expense. In the absence of an insurable event,
the association or the unit owners shall be responsible for the
reconstruction, repair, or replacement, as determined by the provisions
of the declaration or bylaws. All property insurance deductibles,
uninsured losses, and other damages in excess of property insurance
coverage under the property insurance policies maintained by the
association are a common expense of the condominium, except that:
1. A unit owner is responsible for the costs of repair or replacement of any portion of the condominium property not paid by insurance proceeds if such damage is caused by intentional conduct, negligence, or failure to comply with the terms of the declaration or the rules of the association by a unit owner, the members of his or her family, unit occupants, tenants, guests, or invitees, without compromise of the subrogation rights of the insurer.
2. The provisions of subparagraph 1. regarding the financial responsibility of a unit owner for the costs of repairing or replacing other portions of the condominium property also apply to the costs of repair or replacement of personal property of other unit owners or the association, as well as other property, whether real or personal, which the unit owners are required to insure.
3. To the extent the cost of repair or reconstruction for which the unit owner is responsible under this paragraph is reimbursed to the association by insurance proceeds, and the association has collected the cost of such repair or reconstruction from the unit owner, the association shall reimburse the unit owner without the waiver of any rights of subrogation.
4. The association is not obligated to pay for reconstruction or repairs of property losses as a common expense if the property losses were known or should have been known to a unit owner and were not reported to the association until after the insurance claim of the association for that property was settled or resolved with finality, or denied because it was untimely filed.
(k) An association may, upon the approval of a majority of the total voting interests in the association, opt out of the provisions of paragraph (j) for the allocation of repair or reconstruction expenses and allocate repair or reconstruction expenses in the manner provided in the declaration as originally recorded or as amended. Such vote may be approved by the voting interests of the association without regard to any mortgagee consent requirements.
(l) In a multicondominium association that has not consolidated its financial operations under subsection (6), any condominium operated by the association may opt out of the provisions of paragraph (j) with the approval of a majority of the total voting interests in that condominium. Such vote may be approved by the voting interests without regard to any mortgagee consent requirements.
(m) Any association or condominium voting to opt out of the guidelines for repair or reconstruction expenses as described in paragraph (j) must record a notice setting forth the date of the opt-out vote and the page of the official records book on which the declaration is recorded. The decision to opt out is effective upon the date of recording of the notice in the public records by the association. An association that has voted to opt out of paragraph (j) may reverse that decision by the same vote required in paragraphs (k) and (l), and notice thereof shall be recorded in the official records.
(n) The association is not obligated to pay for any reconstruction or repair expenses due to property loss to any improvements installed by a current or former owner of the unit or by the developer if the improvement benefits only the unit for which it was installed and is not part of the standard improvements installed by the developer on all units as part of original construction, whether or not such improvement is located within the unit. This paragraph does not relieve any party of its obligations regarding recovery due under any insurance implemented specifically for such improvements.
(o) The provisions of this subsection shall not apply to timeshare condominium associations. Insurance for timeshare condominium associations shall be maintained pursuant to s. 721.165.
(12) OFFICIAL RECORDS
(a) From the inception of the association, the association shall maintain each of the following items, if applicable, which constitutes the official records of the association:
1. A copy of the plans, permits, warranties, and other items provided by the developer pursuant to s. 718.301(4).
2. A photocopy of the recorded declaration of condominium of each condominium operated by the association and each amendment to each declaration.
3. A photocopy of the recorded bylaws of the association and each amendment to the bylaws.
4. A certified copy of the articles of incorporation of the association, or other documents creating the association, and each amendment thereto.
5. A copy of the current rules of the association.
6. A book or books that contain the minutes of all meetings of the association, the board of administration, and the unit owners, which minutes must be retained for at least 7 years.
7. A current roster of all unit owners and their mailing addresses, unit identifications, voting certifications, and, if known, telephone numbers. The association shall also maintain the electronic mailing addresses and facsimile numbers of unit owners consenting to receive notice by electronic transmission. The electronic mailing addresses and facsimile numbers are not accessible to unit owners if consent to receive notice by electronic transmission is not provided in accordance with subparagraph (c)5. However, the association is not liable for an inadvertent disclosure of the electronic mail address or facsimile number for receiving electronic transmission of notices.
8. All current insurance policies of the association and condominiums operated by the association.
9. A current copy of any management agreement, lease, or other contract to which the association is a party or under which the association or the unit owners have an obligation or responsibility.
10. Bills of sale or transfer for all property owned by the association.
11. Accounting records for the association and separate accounting records for each condominium that the association operates. All accounting records must be maintained for at least 7 years. Any person who knowingly or intentionally defaces or destroys such records, or who knowingly or intentionally fails to create or maintain such records, with the intent of causing harm to the association or one or more of its members, is personally subject to a civil penalty pursuant to s. 718.501(1)(d). The accounting records must include, but are not limited to:
a. Accurate, itemized, and detailed records of all receipts and expenditures.
b. Acurrent account and a monthly, bimonthly, or quarterly statement of the account for each unit designating the name of the unit owner, the due date and amount of each assessment, the amount paid on the account, and the balance due.
c. All audits, reviews, accounting statements, and financial reports of the association or condominium.
d. All contracts for work to be performed. Bids for work to be performed are also considered official records and must be maintained by the association.
12. Ballots, sign-in sheets, voting proxies, and all other papers relating to voting by unit owners, which must be maintained for 1 year from the date of the election, vote, or meeting to which the document relates, notwithstanding paragraph (b).
13. All rental records if the association is acting as agent for the rental of condominium units.
14. A copy of the current question and answer sheet as described in s. 718.504.
15. All other records of the association not specifically included in the foregoing which are related to the operation of the association.
16. A copy of the inspection report as described in s. 718.301(4)(p).
(b) The official records of the association must be maintained within the state for at least 7 years. The records of the association shall be made available to a unit owner within 45 miles of the condominium property or within the county in which the condominium property is located within 5 working days after receipt of a written request by the board or its designee. However, such distance requirement does not apply to an association governing a timeshare condominium. This paragraph may be complied with by having a copy of the official records of the association available for inspection or copying on the condominium property or association property, or the association may offer the option of making the records available to a unit owner electronically via the Internet or by allowing the records to be viewed in electronic format on a computer screen and printed upon request. The association is not responsible for the use or misuse of the information provided to an association member or his or her authorized representative pursuant to the compliance requirements of this chapter unless the association has an affirmative duty not to disclose such information pursuant to this chapter.
(c) The official records of the association are open to inspection by any association member or the authorized representative of such member at all reasonable times. The right to inspect the records includes the right to make or obtain copies, at the reasonable expense, if any, of the member. The association may adopt reasonable rules regarding the frequency, time, location, notice, and manner of record inspections and copying. The failure of an association to provide the records within 10 working days after receipt of a written request creates a rebuttable presumption that the association willfully failed to comply with this paragraph. A unit owner who is denied access to official records is entitled to the actual damages or minimum damages for the association’s willful failure to comply. Minimum damages are $50 per calendar day for up to 10 days, beginning on the 11th working day after receipt of the written request. The failure to permit inspection entitles any person prevailing in an enforcement action to recover reasonable attorney fees from the person in control of the records who, directly or indirectly, knowingly denied access to the records. Any person who knowingly or intentionally defaces or destroys accounting records that are required by this chapter to be maintained during the period for which such records are required to be maintained, or who knowingly or intentionally fails to create or maintain accounting records that are required to be created or maintained, with the intent of causing harm to the association or one or more of its members, is personally subject to a civil penalty pursuant to s. 718.501(1)(d). The association shall maintain an adequate number of copies of the declaration, articles of incorporation, bylaws, and rules, and all amendments to each of the foregoing, as well as the question and answer sheet as described in s. 718.504 and year-end financial information required under this section, on the condominium property to ensure their availability to unit owners and prospective purchasers, and may charge its actual costs for preparing and furnishing these documents to those requesting the documents. An association shall allow a member or his or her authorized representative to use a portable device, including a smartphone, tablet, portable scanner, or any other technology capable of scanning or taking photographs, to make an electronic copy of the official records in lieu of the association’s providing the member or his or her authorized representative with a copy of such records. The association may not charge a member or his or her authorized representative for the use of a portable device. Notwithstanding this paragraph, the following records are not accessible to unit owners:
1. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege, including a record prepared by an association attorney or prepared at the attorney’s express direction, which reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the association, and which was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings, or which was prepared in anticipation of such litigation or proceedings until the conclusion of the litigation or proceedings.
2. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a unit.
3. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records. For purposes of this subparagraph, the term “personnel records” does not include written employment agreements with an association employee or management company, or budgetary or financial records that indicate the compensation paid to an association employee.
4. Medical records of unit owners.
5. Social security
numbers, driver license numbers, credit card numbers, e-mail addresses,
telephone numbers, facsimile numbers, emergency contact information,
addresses of a unit owner other than as provided to fulfill the
association’s notice requirements, and other personal identifying
information of any person, excluding the person’s name, unit
designation, mailing address, property address, and any address, e-mail
address, or facsimile number provided to the association to fulfill the
association’s notice requirements. Notwithstanding the restrictions in
this subparagraph, an association may print and distribute to parcel
owners a directory containing the name, parcel address, and all
telephone numbers of each parcel owner. However, an owner may exclude
his or her telephone numbers from the directory by so requesting in
writing to the association. An owner may consent in writing to the
disclosure of other contact information described in this subparagraph.
The association is not liable for the inadvertent disclosure of
information that is protected under this subparagraph if the information
is included in an official record of the association and is voluntarily
provided by an owner and not requested by the association.
6. Electronic security measures that are used by the association to safeguard data, including passwords.
7. The software and operating system used by the association which allow the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.
(d) The association shall prepare a question and answer sheet as described in s. 718.504, and shall update it annually.
(e) 1. The association or its authorized agent is not required to provide a prospective purchaser or lienholder with information about the condominium or the association other than information or documents required by this chapter to be made available or disclosed. The association or its authorized agent may charge a reasonable fee to the prospective purchaser, lienholder, or the current unit owner for providing good faith responses to requests for information by or on behalf of a prospective purchaser or lienholder, other than that required by law, if the fee does not exceed $150 plus the reasonable cost of photocopying and any attorney’s fees incurred by the association in connection with the response.
2. An association and its authorized agent are not liable for providing such information in good faith pursuant to a written request if the person providing the information includes a written statement in substantially the following form: “The responses herein are made in good faith and to the best of my ability as to their accuracy.”
(f)
An outgoing board or committee member must relinquish all official
records and property of the association in his or her possession or
under his or her control to the incoming board within 5 days after the
election. The division shall impose a civil penalty as set forth in s.
718.501(1)(d)6. against an outgoing board or committee member who
willfully and knowingly fails to relinquish such records and property.
(13) FINANCIAL REPORTING
Within 90 days after the end of the fiscal year, or annually on a date provided in the bylaws, the association shall prepare and complete, or contract for the preparation and completion of, a financial report for the preceding fiscal year. Within 21 days after the final financial report is completed by the association or received from the third party, but not later than 120 days after the end of the fiscal year or other date as provided in the bylaws, the association shall mail to each unit owner at the address last furnished to the association by the unit owner, or hand deliver to each unit owner, a copy of the financial report or a notice that a copy of the financial report will be mailed or hand delivered to the unit owner, without charge, upon receipt of a written request from the unit owner. The division shall adopt rules setting forth uniform accounting principles and standards to be used by all associations and addressing the financial reporting requirements for multicondominium associations. The rules must include, but not be limited to, standards for presenting a summary of association reserves, including a good faith estimate disclosing the annual amount of reserve funds that would be necessary for the association to fully fund reserves for each reserve item based on the straight-line accounting method. This disclosure is not applicable to reserves funded via the pooling method. In adopting such rules, the division shall consider the number of members and annual revenues of an association. Financial reports shall be prepared as follows:
(a) An association that meets the criteria of this paragraph shall prepare a complete set of financial statements in accordance with generally accepted accounting principles. The financial statements must be based upon the association’s total annual revenues, as follows:
1. An association with total annual revenues of $150,000 or more, but less than $300,000, shall prepare compiled financial statements.
2. An association with total annual revenues of at least $300,000, but less than $500,000, shall prepare reviewed financial statements.
3. An association with total annual revenues of $500,000 or more shall prepare audited financial statements.
(b) 1. An association with total annual revenues of less than $150,000 shall prepare a report of cash receipts and expenditures.
2. An association that operates fewer than 50 units, regardless of the association’s annual revenues, shall prepare a report of cash receipts and expenditures in lieu of financial statements required by paragraph (a).
3. A report of cash receipts and disbursements must disclose the amount of receipts by accounts and receipt classifications and the amount of expenses by accounts and expense classifications, including, but not limited to, the following, as applicable: costs for security, professional and management fees and expenses, taxes, costs for recreation facilities, expenses for refuse collection and utility services, expenses for lawn care, costs for building maintenance and repair, insurance costs, administration and salary expenses, and reserves accumulated and expended for capital expenditures, deferred maintenance, and any other category for which the association maintains reserves.
(c) An association may prepare, without a meeting of or approval by the unit owners:
1. Compiled, reviewed, or audited financial statements, if the association is required to prepare a report of cash receipts and expenditures;
2. Reviewed or audited financial statements, if the association is required to prepare compiled financial statements; or
3. Audited financial statements if the association is required to prepare reviewed financial statements.
(d) If approved by a majority of the voting interests present at a properly called meeting of the association, an association may prepare:
1. A report of cash receipts and expenditures in lieu of a compiled, reviewed, or audited financial statement;
2. A report of cash receipts and expenditures or a compiled financial statement in lieu of a reviewed or audited financial statement; or
3. A report of cash receipts and expenditures, a compiled financial statement, or a reviewed financial statement in lieu of an audited financial statement.
Such meeting and approval must occur before the end of the fiscal year and is effective only for the fiscal year in which the vote is taken, except that the approval may also be effective for the following fiscal year. If the developer has not turned over control of the association, all unit owners, including the developer, may vote on issues related to the preparation of the association’s financial reports, from the date of incorporation of the association through the end of the second fiscal year after the fiscal year in which the certificate of a surveyor and mapper is recorded pursuant to s. 718.104(4)(e) or an instrument that transfers title to a unit in the condominium which is not accompanied by a recorded assignment of developer rights in favor of the grantee of such unit is recorded, whichever occurs first. Thereafter, all unit owners except the developer may vote on such issues until control is turned over to the association by the developer. Any audit or review prepared under this section shall be paid for by the developer if done before turnover of control of the association. An association may not waive the financial reporting requirements of this section for more than 3 consecutive years.
(14) COMMINGLING
All funds collected by an association shall be maintained separately in the association’s name. For investment purposes only, reserve funds may be commingled with operating funds of the association. Commingled operating and reserve funds shall be accounted for separately, and a commingled account shall not, at any time, be less than the amount identified as reserve funds. This subsection does not prohibit a multicondominium association from commingling the operating funds of separate condominiums or the reserve funds of separate condominiums. Furthermore, for investment purposes only, a multicondominium association may commingle the operating funds of separate condominiums with the reserve funds of separate condominiums. A manager or business entity required to be licensed or registered under s. 468.432, or an agent, employee, officer, or director of an association, shall not commingle any association funds with his or her funds or with the funds of any other condominium association or the funds of a community association as defined in s. 468.431.
History -- s. 1, ch. 76-222; s. 2, ch. 78-340; ss. 2, 3, 5, ch. 79-314; s. 1, ch. 80-323; s. 1, ch. 81-225; s. 1, ch. 82-199; s. 5, ch. 84-368; s. 5, ch. 86-175; s. 2, ch. 87-46; s. 4, ch. 87-117; s. 6, ch. 90-151; s. 4, ch. 91-103; ss. 3, 5, ch. 91-426; s. 2, ch. 92-49; s. 1, ch. 94-77; s. 231, ch. 94-218; s. 2, ch. 94-336; s. 35, ch. 95-274; s. 854, ch. 97-102; s. 2, ch. 98-322; s. 74, ch. 99-3; s. 52, ch. 2000-302; s. 20, ch. 2001-64; s. 8, ch. 2002-27; s. 4, ch. 2003-14; s. 1, ch. 2004-345; s. 2, ch. 2004-353; s. 37, ch. 2007-1; s. 4, ch. 2007-80; s. 6, ch. 2008-28; ss. 1, 3, ch. 2008-240; s. 87, ch. 2009-21; s. 9, ch. 2010-174; s. 49, ch. 2011-4; s. 2, ch. 2011-196; s. 4, ch. 2013-122; s. 2, ch. 2013-188.
718.112 Bylaws (1) GENERALLY (a) The operation of the association shall be governed by the articles of incorporation if the association is incorporated, and the bylaws of the association, which shall be included as exhibits to the recorded declaration. If one association operates more than one condominium, it shall not be necessary to rerecord the same articles of incorporation and bylaws as exhibits to each declaration after the first, provided that in each case where the articles and bylaws are not so recorded, the declaration expressly incorporates them by reference as exhibits and identifies the book and page of the public records where the first declaration to which they were attached is recorded.
(b) No amendment to the articles of incorporation or bylaws is valid unless recorded with identification on the first page thereof of the book and page of the public records where the declaration of each condominium operated by the association is recorded.
(2) REQUIRED PROVISIONS The bylaws shall provide for the following and, if they do not do so, shall be deemed to include the following:
(a) Administration
1. The form of administration of the association shall be described indicating the title of the officers and board of administration and specifying the powers, duties, manner of selection and removal, and compensation, if any, of officers and boards. In the absence of such a provision, the board of administration shall be composed of five members, except in the case of a condominium which has five or fewer units, in which case in a not-for-profit corporation the board shall consist of not fewer than three members. In the absence of provisions to the contrary in the bylaws, the board of administration shall have a president, a secretary, and a treasurer, who shall perform the duties of such officers customarily performed by officers of corporations. Unless prohibited in the bylaws, the board of administration may appoint other officers and grant them the duties it deems appropriate. Unless otherwise provided in the bylaws, the officers shall serve without compensation and at the pleasure of the board of administration. Unless otherwise provided in the bylaws, the members of the board shall serve without compensation.
2. When a unit owner files a written inquiry by certified mail with the board of administration, the board shall respond in writing to the unit owner within 30 days of receipt of the inquiry. The board’s response shall either give a substantive response to the inquirer, notify the inquirer that a legal opinion has been requested, or notify the inquirer that advice has been requested from the division. If the board requests advice from the division, the board shall, within 10 days of its receipt of the advice, provide in writing a substantive response to the inquirer. If a legal opinion is requested, the board shall, within 60 days after the receipt of the inquiry, provide in writing a substantive response to the inquiry. The failure to provide a substantive response to the inquiry as provided herein precludes the board from recovering attorney’s fees and costs in any subsequent litigation, administrative proceeding, or arbitration arising out of the inquiry. The association may through its board of administration adopt reasonable rules and regulations regarding the frequency and manner of responding to unit owner inquiries, one of which may be that the association is only obligated to respond to one written inquiry per unit in any given 30-day period. In such a case, any additional inquiry or inquiries must be responded to in the subsequent 30-day period, or periods, as applicable.
(b) Quorum; voting requirements; proxies
1. Unless a lower number is provided in the bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members is a majority of the voting interests. Unless otherwise provided in this chapter or in the declaration, articles of incorporation, or bylaws, and except as provided in subparagraph (d)4., decisions shall be made by a majority of the voting interests represented at a meeting at which a quorum is present.
2. Except
as specifically otherwise provided herein, unit owners in a residential
condominium may not vote by general proxy, but may vote by limited
proxies substantially conforming to a limited proxy form adopted by the
division. A voting interest or consent right allocated to a unit owned
by the association may not be exercised or considered for any purpose,
whether for a quorum, an election, or otherwise. Limited proxies and
general proxies may be used to establish a quorum. Limited proxies shall
be used for votes taken to waive or reduce reserves in accordance with
subparagraph (f)2.; for votes taken to waive the financial reporting
requirements of s. 718.111(13); for votes taken to amend the declaration
pursuant to s. 718.110; for votes taken to amend the articles of
incorporation or bylaws pursuant to this section; and for any other
matter for which this chapter requires or permits a vote of the unit
owners. Except as provided in paragraph (d), a proxy, limited or
general, may not be used in the election of board members in a
residential condominium. General proxies may be used for other matters
for which limited proxies are not required, and may be used in voting
for nonsubstantive changes to items for which a limited proxy is
required and given. Notwithstanding this subparagraph, unit owners may
vote in person at unit owner meetings. This subparagraph does not limit
the use of general proxies or require the use of limited proxies for any
agenda item or election at any meeting of a timeshare condominium
association or a nonresidential condominium association.
3. A proxy given
is effective only for the specific meeting for which originally given
and any lawfully adjourned meetings thereof. A proxy is not valid longer
than 90 days after the date of the first meeting for which it was given.
Each proxy is revocable at any time at the pleasure of the unit owner
executing it.
4. A member of the board of administration or a committee may submit in writing his or her agreement or disagreement with any action taken at a meeting that the member did not attend. This agreement or disagreement may not be used as a vote for or against the action taken or to create a quorum.
5. A board or
committee member’s participation in a meeting via telephone, real-time
videoconferencing, or similar real-time electronic or video
communication counts toward a quorum, and such member may vote as if
physically present. A speaker must be used so that the conversation of
such members may be heard by the board or committee members attending in
person as well as by any unit owners present at a meeting.
(c) Board of administration meetings
Meetings
of the board of administration at which a quorum of the members is present
are open to all unit owners. Members of the board of administration may
use e-mail as a means of communication but may not cast a vote on an
association matter via e-mail. A unit owner may tape record or videotape
the meetings. The right to attend such meetings includes the right to
speak at such meetings with reference to all designated agenda items. The
division shall adopt reasonable rules governing the tape recording and
videotaping of the meeting. The association may adopt written reasonable
rules governing the frequency, duration, and manner of unit owner
statements.
1. Adequate
notice of all board meetings, which must specifically identify all
agenda items, must be posted conspicuously on the condominium property
at least 48 continuous hours before the meeting except in an emergency.
If 20 percent of the voting interests petition the board to address an
item of business, the board, within 60 days after receipt of the
petition, shall place the item on the agenda at its next regular board
meeting or at a special meeting called for that purpose. An item not
included on the notice may be taken up on an emergency basis by a vote
of at least a majority plus one of the board members. Such emergency
action must be noticed and ratified at the next regular board meeting.
However, written notice of a meeting at which a nonemergency special
assessment or an amendment to rules regarding unit use will be
considered must be mailed, delivered, or electronically transmitted to
the unit owners and posted conspicuously on the condominium property at
least 14 days before the meeting. Evidence of compliance with this
14-day notice requirement must be made by an affidavit executed by the
person providing the notice and filed with the official records of the
association. Upon notice to the unit owners, the board shall, by duly
adopted rule, designate a specific location on the condominium or
association property where all notices of board meetings must be posted.
If there is no condominium property or association property where
notices can be posted, notices shall be mailed, delivered, or
electronically transmitted to each unit owner at least 14 days before
the meeting. In lieu of or in addition to the physical posting of the
notice on the condominium property, the association may, by reasonable
rule, adopt a procedure for conspicuously posting and repeatedly
broadcasting the notice and the agenda on a closed-circuit cable
television system serving the condominium association. However, if
broadcast notice is used in lieu of a notice physically posted on
condominium property, the notice and agenda must be broadcast at least
four times every broadcast hour of each day that a posted notice is
otherwise required under this section. If broadcast notice is provided,
the notice and agenda must be broadcast in a manner and for a sufficient
continuous length of time so as to allow an average reader to observe
the notice and read and comprehend the entire content of the notice and
the agenda. Notice of any meeting in which regular or special
assessments against unit owners are to be considered must specifically
state that assessments will be considered and provide the nature,
estimated cost, and description of the purposes for such assessments.
2. Meetings of a committee to take final action on behalf of the board or make recommendations to the board regarding the association budget are subject to this paragraph. Meetings of a committee that does not take final action on behalf of the board or make recommendations to the board regarding the association budget are subject to this section, unless those meetings are exempted from this section by the bylaws of the association.
3. Notwithstanding any other law, the requirement that board meetings and committee meetings be open to the unit owners does not apply to:
a. Meetings between the board or a committee and the association’s attorney, with respect to proposed or pending litigation, if the meeting is held for the purpose of seeking or rendering legal advice; or
b. Board meetings held for the purpose of discussing personnel matters.
(d) Unit owner meetings
1. An annual meeting of the unit owners shall be held at the location provided in the association bylaws and, if the bylaws are silent as to the location, the meeting shall be held within 45 miles of the condominium property. However, such distance requirement does not apply to an association governing a timeshare condominium.
2. Unless the
bylaws provide otherwise, a vacancy on the board caused by the expiration
of a director’s term shall be filled by electing a new board member, and
the election must be by secret ballot. An election is not required if the
number of vacancies equals or exceeds the number of candidates. For
purposes of this paragraph, the term “candidate” means an eligible
person who has timely submitted the written notice, as described in
sub-subparagraph 4.a., of his or her intention to become a candidate.
Except in a timeshare or nonresidential condominium, or if the staggered
term of a board member does not expire until a later annual meeting, or if
all members’ terms would otherwise expire but there are no candidates,
the terms of all board members expire at the annual meeting, and such
members may stand for reelection unless prohibited by the bylaws. If the
bylaws or articles of incorporation permit terms of no more than 2 years,
the association board members may serve 2-year terms. If the number of
board members whose terms expire at the annual meeting equals or exceeds
the number of candidates, the candidates become members of the board
effective upon the adjournment of the annual meeting. Unless the bylaws
provide otherwise, any remaining vacancies shall be filled by the
affirmative vote of the majority of the directors making up the newly
constituted board even if the directors constitute less than a quorum or
there is only one director. In a residential condominium association of
more than 10 units or in a residential condominium association that does
not include timeshare units or timeshare interests, coowners of a unit may
not serve as members of the board of directors at the same time unless
they own more than one unit or unless there are not enough eligible
candidates to fill the vacancies on the board at the time of the vacancy.
A unit owner in a residential condominium desiring to be a candidate for
board membership must comply with sub-subparagraph 4.a. and must be
eligible to be a candidate to serve on the board of directors at the time
of the deadline for submitting a notice of intent to run in order to have
his or her name listed as a proper candidate on the ballot or to serve on
the board. A person who has been suspended or removed by the division
under this chapter, or who is delinquent in the payment of any monetary
obligation due to the association, is not eligible to be a candidate for
board membership and may not be listed on the ballot. A person who has
been convicted of any felony in this state or in a United States District
or Territorial Court, or who has been convicted of any offense in another
jurisdiction which would be considered a felony if committed in this
state, is not eligible for board membership unless such felon’s civil
rights have been restored for at least 5 years as of the date such person
seeks election to the board. The validity of an action by the board is not
affected if it is later determined that a board member is ineligible for
board membership due to having been convicted of a felony. This
subparagraph does not limit the term of a member of the board of a
nonresidential condominium.
3. The bylaws must provide the method of calling meetings of unit owners, including annual meetings. Written notice must include an agenda, must be mailed, hand delivered, or electronically transmitted to each unit owner at least 14 days before the annual meeting, and must be posted in a conspicuous place on the condominium property at least 14 continuous days before the annual meeting. Upon notice to the unit owners, the board shall, by duly adopted rule, designate a specific location on the condominium property or association property where all notices of unit owner meetings shall be posted. This requirement does not apply if there is no condominium property or association property for posting notices. In lieu of, or in addition to, the physical posting of meeting notices, the association may, by reasonable rule, adopt a procedure for conspicuously posting and repeatedly broadcasting the notice and the agenda on a closed-circuit cable television system serving the condominium association. However, if broadcast notice is used in lieu of a notice posted physically on the condominium property, the notice and agenda must be broadcast at least four times every broadcast hour of each day that a posted notice is otherwise required under this section. If broadcast notice is provided, the notice and agenda must be broadcast in a manner and for a sufficient continuous length of time so as to allow an average reader to observe the notice and read and comprehend the entire content of the notice and the agenda. Unless a unit owner waives in writing the right to receive notice of the annual meeting, such notice must be hand delivered, mailed, or electronically transmitted to each unit owner. Notice for meetings and notice for all other purposes must be mailed to each unit owner at the address last furnished to the association by the unit owner, or hand delivered to each unit owner. However, if a unit is owned by more than one person, the association must provide notice to the address that the developer identifies for that purpose and thereafter as one or more of the owners of the unit advise the association in writing, or if no address is given or the owners of the unit do not agree, to the address provided on the deed of record. An officer of the association, or the manager or other person providing notice of the association meeting, must provide an affidavit or United States Postal Service certificate of mailing, to be included in the official records of the association affirming that the notice was mailed or hand delivered in accordance with this provision.
4. The members of
the board of a residential condominium shall be elected by written ballot
or voting machine. Proxies may not be used in electing the board in
general elections or elections to fill vacancies caused by recall,
resignation, or otherwise, unless otherwise provided in this chapter. This
subparagraph does not apply to an association governing a timeshare
condominium.
a.
At least 60 days before a scheduled election, the association shall
mail, deliver, or electronically transmit, by separate association
mailing or included in another association mailing, delivery, or
transmission, including regularly published newsletters, to each unit
owner entitled to a vote, a first notice of the date of the election. A
unit owner or other eligible person desiring to be a candidate for the
board must give written notice of his or her intent to be a candidate to
the association at least 40 days before a scheduled election. Together
with the written notice and agenda as set forth in subparagraph 3., the
association shall mail, deliver, or electronically transmit a second
notice of the election to all unit owners entitled to vote, together
with a ballot that lists all candidates. Upon request of a candidate, an
information sheet, no larger than 81/2
inches by 11 inches, which must be furnished by the candidate at least
35 days before the election, must be included with the mailing,
delivery, or transmission of the ballot, with the costs of mailing,
delivery, or electronic transmission and copying to be borne by the
association. The association is not liable for the contents of the
information sheets prepared by the candidates. In order to reduce costs,
the association may print or duplicate the information sheets on both
sides of the paper. The division shall by rule establish voting
procedures consistent with this sub-subparagraph, including rules
establishing procedures for giving notice by electronic transmission and
rules providing for the secrecy of ballots. Elections shall be decided
by a plurality of ballots cast. There is no quorum requirement; however,
at least 20 percent of the eligible voters must cast a ballot in order
to have a valid election. A unit owner may not permit any other person
to vote his or her ballot, and any ballots improperly cast are invalid.
A unit owner who violates this provision may be fined by the association
in accordance with s. 718.303. A unit owner who needs assistance in
casting the ballot for the reasons stated in s. 101.051 may obtain such
assistance. The regular election must occur on the date of the annual
meeting. Notwithstanding this sub-subparagraph, an election is not
required unless more candidates file notices of intent to run or are
nominated than board vacancies exist.
b.
Within 90
days after being elected or appointed to the board of an association of
a residential condominium, each newly elected or appointed director
shall certify in writing to the secretary of the association that he or
she has read the association’s declaration of condominium, articles of
incorporation, bylaws, and current written policies; that he or she will
work to uphold such documents and policies to the best of his or her
ability; and that he or she will faithfully discharge his or her
fiduciary responsibility to the association’s members. In lieu of this
written certification, within 90 days after being elected or appointed
to the board, the newly elected or appointed director may submit a
certificate of having satisfactorily completed the educational
curriculum administered by a division-approved condominium education
provider within 1 year before or 90 days after the date of election or
appointment. The written certification or educational certificate is
valid and does not have to be resubmitted as long as the director serves
on the board without interruption. A director of an association of a
residential condominium who fails to timely file the written
certification or educational certificate is suspended from service on
the board until he or she complies with this sub-subparagraph. The board
may temporarily fill the vacancy during the period of suspension. The
secretary shall cause the association to retain a director’s written
certification or educational certificate for inspection by the members
for 5 years after a director’s election or the duration of the
director’s uninterrupted tenure, whichever is longer. Failure to have
such written certification or educational certificate on file does not
affect the validity of any board action.
c. Any challenge to the election process must be commenced within 60 days after the election results are announced.
5. Any approval by unit owners called for by this chapter or the applicable declaration or bylaws, including, but not limited to, the approval requirement in s. 718.111(8), must be made at a duly noticed meeting of unit owners and is subject to all requirements of this chapter or the applicable condominium documents relating to unit owner decisionmaking, except that unit owners may take action by written agreement, without meetings, on matters for which action by written agreement without meetings is expressly allowed by the applicable bylaws or declaration or any law that provides for such action.
6. Unit owners may waive notice of specific meetings if allowed by the applicable bylaws or declaration or any law. If authorized by the bylaws, notice of meetings of the board of administration, unit owner meetings, except unit owner meetings called to recall board members under paragraph (j), and committee meetings may be given by electronic transmission to unit owners who consent to receive notice by electronic transmission.
7. Unit owners have the right to participate in meetings of unit owners with reference to all designated agenda items. However, the association may adopt reasonable rules governing the frequency, duration, and manner of unit owner participation.
8. A unit owner may tape record or videotape a meeting of the unit owners subject to reasonable rules adopted by the division.
9. Unless otherwise provided in the bylaws, any vacancy occurring on the board before the expiration of a term may be filled by the affirmative vote of the majority of the remaining directors, even if the remaining directors constitute less than a quorum, or by the sole remaining director. In the alternative, a board may hold an election to fill the vacancy, in which case the election procedures must conform to sub-subparagraph 4.a. unless the association governs 10 units or fewer and has opted out of the statutory election process, in which case the bylaws of the association control. Unless otherwise provided in the bylaws, a board member appointed or elected under this section shall fill the vacancy for the unexpired term of the
seat being filled. Filling vacancies created by recall is governed by paragraph (j) and rules adopted by the division.
10.
This chapter does not limit the use of general or limited proxies,
require the use of general or limited proxies, or require the use of a
written ballot or voting machine for any agenda item or election at any
meeting of a timeshare condominium association or nonresidential
condominium association.
Notwithstanding
subparagraph (b)2. and sub-subparagraph 4.a., an association of 10 or
fewer units may, by affirmative vote of a majority of the total voting
interests, provide for different voting and election procedures in its
bylaws, which may be by a proxy specifically delineating the different
voting and election procedures. The different voting and election
procedures may provide for elections to be conducted by limited or general
proxy.
(e) Budget meeting
1. Any meeting at which a proposed annual budget of an association will be considered by the board or unit owners shall be open to all unit owners. At least 14 days prior to such a meeting, the board shall hand deliver to each unit owner, mail to each unit owner at the address last furnished to the association by the unit owner, or electronically transmit to the location furnished by the unit owner for that purpose a notice of such meeting and a copy of the proposed annual budget. An officer or manager of the association, or other person providing notice of such meeting, shall execute an affidavit evidencing compliance with such notice requirement, and such affidavit shall be filed among the official records of the association.
2. a. If a board adopts in any fiscal year an annual budget which requires assessments against unit owners which exceed 115 percent of assessments for the preceding fiscal year, the board shall conduct a special meeting of the unit owners to consider a substitute budget if the board receives, within 21 days after adoption of the annual budget, a written request for a special meeting from at least 10 percent of all voting interests. The special meeting shall be conducted within 60 days after adoption of the annual budget. At least 14 days prior to such special meeting, the board shall hand deliver to each unit owner, or mail to each unit owner at the address last furnished to the association, a notice of the meeting. An officer or manager of the association, or other person providing notice of such meeting shall execute an affidavit evidencing compliance with this notice requirement, and such affidavit shall be filed among the official records of the association. Unit owners may consider and adopt a substitute budget at the special meeting. A substitute budget is adopted if approved by a majority of all voting interests unless the bylaws require adoption by a greater percentage of voting interests. If there is not a quorum at the special meeting or a substitute budget is not adopted, the annual budget previously adopted by the board shall take effect as scheduled.
b. Any determination of whether assessments exceed 115 percent of assessments for the prior fiscal year shall exclude any authorized provision for reasonable reserves for repair or replacement of the condominium property, anticipated expenses of the association which the board does not expect to be incurred on a regular or annual basis, or assessments for betterments to the condominium property.
c. If the developer controls the board, assessments shall not exceed 115 percent of assessments for the prior fiscal year unless approved by a majority of all voting interests.
(f) Annual budget
1. The proposed annual budget of estimated revenues and expenses must be detailed and must show the amounts budgeted by accounts and expense classifications, including, if applicable, but not limited to, those expenses listed in s. 718.504(21). A multicondominium association shall adopt a separate budget of common expenses for each condominium the association operates and shall adopt a separate budget of common expenses for the association. In addition, if the association maintains limited common elements with the cost to be shared only by those entitled to use the limited common elements as provided for in s. 718.113(1), the budget or a schedule attached to it must show the amount budgeted for this maintenance. If, after turnover of control of the association to the unit owners, any of the expenses listed in s. 718.504(21) are not applicable, they need not be listed.
2. In addition to annual operating expenses, the budget must include reserve accounts for capital expenditures and deferred maintenance. These accounts must include, but are not limited to, roof replacement, building painting, and pavement resurfacing, regardless of the amount of deferred maintenance expense or replacement cost, and for any other item that has a deferred maintenance expense or replacement cost that exceeds $10,000. The amount to be reserved must be computed using a formula based upon estimated remaining useful life and estimated replacement cost or deferred maintenance expense of each reserve item. The association may adjust replacement reserve assessments annually to take into account any changes in estimates or extension of the useful life of a reserve item caused by deferred maintenance. This subsection does not apply to an adopted budget in which the members of an association have determined, by a majority vote at a duly called meeting of the association, to provide no reserves or less reserves than required by this subsection. However, prior to turnover of control of an association by a developer to unit owners other than a developer pursuant to s. 718.301, the developer may vote to waive the reserves or reduce the funding of reserves through the period expiring at the end of the second fiscal year after the fiscal year in which the certificate of a surveyor and mapper is recorded pursuant to s. 718.104(4)(e) or an instrument that transfers title to a unit in the condominium which is not accompanied by a recorded assignment of developer rights in favor of the grantee of such unit is recorded, whichever occurs first, after which time reserves may be waived or reduced only upon the vote of a majority of all nondeveloper voting interests voting in person or by limited proxy at a duly called meeting of the association. If a meeting of the unit owners has been called to determine whether to waive or reduce the funding of reserves, and no such result is achieved or a quorum is not attained, the reserves included in the budget shall go into effect. After the turnover, the developer may vote its voting interest to waive or reduce the funding of reserves.
3. Reserve funds and any interest accruing thereon shall remain in the reserve account or accounts, and may be used only for authorized reserve expenditures unless their use for other purposes is approved in advance by a majority vote at a duly called meeting of the association. Prior to turnover of control of an association by a developer to unit owners other than the developer pursuant to s. 718.301, the developer-controlled association shall not vote to use reserves for purposes other than that for which they were intended without the approval of a majority of all nondeveloper voting interests, voting in person or by limited proxy at a duly called meeting of the association.
4. The only voting interests that are eligible to vote on questions that involve waiving or reducing the funding of reserves, or using existing reserve funds for purposes other than purposes for which the reserves were intended, are the voting interests of the units subject to assessment to fund the reserves in question. Proxy questions relating to waiving or reducing the funding of reserves or using existing reserve funds for purposes other than purposes for which the reserves were intended shall contain the following statement in capitalized, bold letters in a font size larger than any other used on the face of the proxy ballot:
WAIVING OF RESERVES, IN WHOLE OR IN PART, OR ALLOWING ALTERNATIVE USES OF EXISTING RESERVES MAY RESULT IN UNIT OWNER LIABILITY FOR PAYMENT OF UNANTICIPATED SPECIAL ASSESSMENTS REGARDING THOSE ITEMS.
(g) Assessments The manner of collecting from the unit owners their shares of the common expenses shall be stated in the bylaws. Assessments shall be made against units not less frequently than quarterly in an amount which is not less than that required to provide funds in advance for payment of all of the anticipated current operating expenses and for all of the unpaid operating expenses previously incurred. Nothing in this paragraph shall preclude the right of an association to accelerate assessments of an owner delinquent in payment of common expenses. Accelerated assessments shall be due and payable on the date the claim of lien is filed. Such accelerated assessments shall include the amounts due for the remainder of the budget year in which the claim of lien was filed.
(h) Amendment of Bylaws
1. The method by which the bylaws may be amended consistent with the provisions of this chapter shall be stated. If the bylaws fail to provide a method of amendment, the bylaws may be amended if the amendment is approved by the owners of not less than two-thirds of the voting interests.
2. No bylaw shall be revised or amended by reference to its title or number only. Proposals to amend existing bylaws shall contain the full text of the bylaws to be amended; new words shall be inserted in the text underlined, and words to be deleted shall be lined through with hyphens. However, if the proposed change is so extensive that this procedure would hinder, rather than assist, the understanding of the proposed amendment, it is not necessary to use underlining and hyphens as indicators of words added or deleted, but, instead, a notation must be inserted immediately preceding the proposed amendment in substantially the following language: “Substantial rewording of bylaw. See bylaw for present text.”
3. Nonmaterial errors or omissions in the bylaw process will not invalidate an otherwise properly promulgated amendment.
(i) Transfer fees
No charge shall be made by the association or any body thereof in connection with the sale, mortgage, lease, sublease, or other transfer of a unit unless the association is required to approve such transfer and a fee for such approval is provided for in the declaration, articles, or bylaws. Any such fee may be preset, but in no event may such fee exceed $100 per applicant other than husband/wife or parent/dependent child, which are considered one applicant. However, if the lease or sublease is a renewal of a lease or sublease with the same lessee or sublessee, no charge shall be made. The foregoing notwithstanding, an association may, if the authority to do so appears in the declaration or bylaws, require that a prospective lessee place a security deposit, in an amount not to exceed the equivalent of 1 month’s rent, into an escrow account maintained by the association. The security deposit shall protect against damages to the common elements or association property. Payment of interest, claims against the deposit, refunds, and disputes under this paragraph shall be handled in the same fashion as provided in part II of chapter 83.
(j) Recall of board members Subject to s. 718.301, any member of the board of administration may be recalled and removed from office with or without cause by the vote or agreement in writing by a majority of all the voting interests. A special meeting of the unit owners to recall a member or members of the board of administration may be called by 10 percent of the voting interests giving notice of the meeting as required for a meeting of unit owners, and the notice shall state the purpose of the meeting. Electronic transmission may not be used as a method of giving notice of a meeting called in whole or in part for this purpose.
1. If the recall is approved by a majority of all voting interests by a vote at a meeting, the recall will be effective as provided in this paragraph. The board shall duly notice and hold a board meeting within 5 full business days after the adjournment of the unit owner meeting to recall one or more board members. At the meeting, the board shall either certify the recall, in which case such member or members shall be recalled effective immediately and shall turn over to the board within 5 full business days any and all records and property of the association in their possession, or shall proceed as set forth in subparagraph 3.
2. If the proposed recall is by an agreement in writing by a majority of all voting interests, the agreement in writing or a copy thereof shall be served on the association by certified mail or by personal service in the manner authorized by chapter 48 and the Florida Rules of Civil Procedure. The board of administration shall duly notice and hold a meeting of the board within 5 full business days after receipt of the agreement in writing. At the meeting, the board shall either certify the written agreement to recall a member or members of the board, in which case such member or members shall be recalled effective immediately and shall turn over to the board within 5 full business days any and all records and property of the association in their possession, or proceed as described in subparagraph 3.
3. If the board determines not to certify the written agreement to recall a member or members of the board, or does not certify the recall by a vote at a meeting, the board shall, within 5 full business days after the meeting, file with the division a petition for arbitration pursuant to the procedures in s. 718.1255. For the purposes of this section, the unit owners who voted at the meeting or who executed the agreement in writing shall constitute one party under the petition for arbitration. If the arbitrator certifies the recall as to any member or members of the board, the recall will be effective upon mailing of the final order of arbitration to the association. If the association fails to comply with the order of the arbitrator, the division may take action pursuant to s. 718.501. Any member or members so recalled shall deliver to the board any and all records of the association in their possession within 5 full business days after the effective date of the recall.
4. If the board fails to duly notice and hold a board meeting within 5 full business days after service of an agreement in writing or within 5 full business days after the adjournment of the unit owner recall meeting, the recall shall be deemed effective and the board members so recalled shall immediately turn over to the board any and all records and property of the association.
5. If the board fails to duly notice and hold the required meeting or fails to file the required petition, the unit owner representative may file a petition pursuant to s. 718.1255 challenging the board’s failure to act. The petition must be filed within 60 days after the expiration of the applicable 5-full-business-day period. The review of a petition under this subparagraph is limited to the sufficiency of service on the board and the facial validity of the written agreement or ballots filed.
6. If a vacancy occurs on the board as a result of a recall or removal and less than a majority of the board members are removed, the vacancy may be filled by the affirmative vote of a majority of the remaining directors, notwithstanding any provision to the contrary contained in this subsection. If vacancies occur on the board as a result of a recall and a majority or more of the board members are removed, the vacancies shall be filled in accordance with procedural rules to be adopted by the division, which rules need not be consistent with this subsection. The rules must provide procedures governing the conduct of the recall election as well as the operation of the association during the period after a recall but before the recall election.
7. A board member who has been recalled may file a petition pursuant to s. 718.1255 challenging the validity of the recall. The petition must be filed within 60 days after the recall is deemed certified. The association and the unit owner representative shall be named as the respondents.
8. The division may not accept for filing a recall petition, whether filed pursuant to subparagraph 1., subparagraph 2., subparagraph 5., or subparagraph 7. and regardless of whether the recall was certified, when there are 60 or fewer days until the scheduled reelection of the board member sought to be recalled or when 60 or fewer days have elapsed since the election of the board member sought to be recalled.
(k) Arbitration There
shall be a provision for mandatory nonbinding arbitration as provided for
in s. 718.1255 for any residential condominium.
(l) Certificate of compliance
A
provision that a certificate of compliance from a licensed electrical
contractor or electrician may be accepted by the association’s board
as evidence of compliance of the condominium units with the applicable
fire and life safety code must be included. Notwithstanding chapter 633
or of any other code, statute, ordinance, administrative rule, or
regulation, or any interpretation of the foregoing, an association,
residential condominium, or unit owner is not obligated to retrofit the
common elements, association property, or units of a residential
condominium with a fire sprinkler system in a building that has been
certified for occupancy by the applicable governmental entity if the
unit owners have voted to forego such retrofitting by the affirmative
vote of a majority of all voting interests in the affected condominium.
The local authority having jurisdiction may not require completion of
retrofitting with a fire sprinkler system before January 1, 2020. By
December 31, 2016, a residential condominium association that is not in
compliance with the requirements for a fire sprinkler system and has not
voted to forego retrofitting of such a system must initiate an
application for a building permit for the required installation with the
local government having jurisdiction demonstrating that the association
will become compliant by December 31, 2019.
1. A vote to forego retrofitting may be obtained by limited proxy or by a ballot personally cast at a duly called membership meeting, or by execution of a written consent by the member, and is effective upon recording a certificate attesting to such vote in the public records of the county where the condominium is located. The association shall mail or hand deliver to each unit owner written notice at least 14 days before the membership meeting in which the vote to forego retrofitting of the required fire sprinkler system is to take place. Within 30 days after the association’s opt-out vote, notice of the results of the opt-out vote must be mailed or hand delivered to all unit owners. Evidence of compliance with this notice requirement must be made by affidavit executed by the person providing the notice and filed among the official records of the association. After notice is provided to each owner, a copy must be provided by the current owner to a new owner before closing and by a unit owner to a renter before signing a lease.
2. If there has been a previous vote to forego retrofitting, a vote to require retrofitting may be obtained at a special meeting of the unit owners called by a petition of at least 10 percent of the voting interests. Such a vote may only be called once every 3 years. Notice shall be provided as required for any regularly called meeting of the unit owners, and must state the purpose of the meeting. Electronic transmission may not be used to provide notice of a meeting called in whole or in part for this purpose.
3. As part of the information collected annually from condominiums, the division shall require condominium associations to report the membership vote and recording of a certificate under this subsection and, if retrofitting has been undertaken, the per-unit cost of such work. The division shall annually report to the Division of State Fire Marshal of the Department of Financial Services the number of condominiums that have elected to forego retrofitting.
4. Notwithstanding
s. 553.509, a residential association may not be obligated to, and may
forego the retrofitting of, any improvements required by s. 553.509(2)
upon an affirmative vote of a majority of the voting interests in the
affected condominium.
(m) Common elements; limited power to convey
1. With respect to condominiums created on or after October 1, 1994, the bylaws shall include a provision granting the association a limited power to convey a portion of the common elements to a condemning authority for the purpose of providing utility easements, right-of-way expansion, or other public purposes, whether negotiated or as a result of eminent domain proceedings.
2. In any case where the bylaws are silent as to the association’s power to convey common elements as described in subparagraph 1., the bylaws shall be deemed to include the provision described in subparagraph 1.
(n) Director or officer delinquencies
A director or officer more than 90 days delinquent in the payment of any monetary obligation due the association shall be deemed to have abandoned the office, creating a vacancy in the office to be filled according to law.
(o) Director or officer offenses A director or officer charged by information or indictment with a felony theft or embezzlement offense involving the association’s funds or property must be removed from office, creating a vacancy in the office to be filled according to law until the end of the period of the suspension or the end of the director’s term of office, whichever occurs first. While such director or officer has such criminal charge pending, he or she may not be appointed or elected to a position as a director or officer. However, if the charges are resolved without a finding of guilt, the director or officer shall be reinstated for the remainder of his or her term of office, if any.
(3) OPTIONAL PROVISIONS
The bylaws as originally recorded or as amended under the procedures provided therein may provide for the following:
(a) A method of adopting and amending administrative rules and regulations governing the details of the operation and use of the common elements.
(b) Restrictions on and requirements for the use, maintenance, and appearance of the units and the use of the common elements.
(c) Provisions for giving notice by electronic transmission in a manner authorized by law of meetings of the board of directors and committees and of annual and special meetings of the members.
(d) Other provisions which are not inconsistent with this chapter or with the declaration, as may be desired.
History -- s. 1, ch. 76-222; s. 1, ch. 77-174; s. 5, ch. 77-221; ss. 3, 4, ch. 77-222; s. 1, ch. 78-340; s. 6, ch. 79-314; s. 2, ch. 80-323; s. 2, ch. 81-225; s. 1, ch. 82-113; s. 4, ch. 82-199; s. 6, ch. 84-368; s. 6, ch. 86-175; s. 2, ch. 88-148; s. 7, ch. 90-151; s. 5, ch. 91-103; ss. 5, 6, ch. 91-426; s. 3, ch. 92-49; s. 3, ch. 94-336; s. 7, ch. 94-350; s. 36, ch. 95-274; s. 2, ch. 96-396; s. 32, ch. 97-93; s. 1773, ch. 97-102; s. 1, ch. 97-301; s. 2, ch. 98-195; s. 3, ch. 98-322; s. 53, ch. 2000-302; s. 21, ch. 2001-64; s. 9, ch. 2002-27; s. 5, ch. 2003-14; s. 4, ch. 2004-345; s. 4, ch. 2004-353; s. 134, ch. 2005-2; s. 7, ch. 2008-28; s. 88, ch. 2009-21; s. 10, ch. 2010-174; s. 3, ch. 2011-196; s. 5, ch. 2013-122; s. 1, ch. 2013-159; s. 3, ch. 2013-188
718.1124 Failure
to fill vacancies on board of administration sufficient to constitute a
quorum; appointment of receiver upon petition of unit owner (1) If an association fails to
fill vacancies on the board of administration sufficient to constitute a
quorum in accordance with the bylaws, any unit owner may give notice of
his or her intent to apply to the circuit court within whose jurisdiction
the condominium lies for the appointment of a receiver to manage the
affairs of the association. The form of the notice shall be as follows:
NOTICE OF INTENT TO APPLY FOR RECEIVERSHIP
YOU ARE HEREBY NOTIFIED that the
undersigned owner of a condominium unit in (name of
condominium) intends to file a petition in the circuit court
for appointment of a receiver to manage the affairs of the association
on the grounds that the association has failed to fill vacancies on the
board of administration sufficient to constitute a quorum. This petition
will not be filed if the vacancies are filled within 30 days after the
date on which this notice was sent or posted, whichever is later. If a
receiver is appointed, the receiver shall have all of the powers of the
board and shall be entitled to receive a salary and reimbursement of all
costs and attorney's fees payable from association funds.
(name and address of petitioning
unit owner)
(2) The notice required by
subsection (1) must be provided by the unit owner to the association by
certified mail or personal delivery, must be posted in a conspicuous place
on the condominium property, and must be provided by the unit owner to
every other unit owner of the association by certified mail or personal
delivery. The notice must be posted and mailed or delivered at least 30
days prior to the filing of a petition seeking receivership. Notice by
mail to a unit owner shall be sent to the address used by the county
property appraiser for notice to the unit owner, except that where a unit
owner's address is not publicly available the notice shall be mailed to
the unit.
(3) If the association fails to
fill the vacancies within 30 days after the notice required by subsection
(1) is posted and mailed or delivered, the unit owner may proceed with the
petition.
(4) If a receiver is appointed,
all unit owners shall be given written notice of such appointment as
provided in s. 718.127.
(5) The association shall be
responsible for the salary of the receiver, court costs, and attorney's
fees. The receiver shall have all powers and duties of a duly constituted
board of administration and shall serve until the association fills
vacancies on the board sufficient to constitute a quorum and the court
relieves the receiver of the appointment.
History -- s. 1, ch. 81-185; s. 8, ch. 2008-28; s. 1, ch. 2008-202.
718.113
Maintenance; limitation upon improvement; display of flag; hurricane
shutters; display of religious decorations (1) Maintenance of the common elements is the responsibility of the association. The declaration may provide that certain limited common elements shall be maintained by those entitled to use the limited common elements or that the association shall provide the maintenance, either as a common expense or with the cost shared only by those entitled to use the limited common elements. If the maintenance is to be by the association at the expense of only those entitled to use the limited common elements, the declaration shall describe in detail the method of apportioning such costs among those entitled to use the limited common elements, and the association may use the provisions of s. 718.116 to enforce payment of the shares of such costs by the unit owners entitled to use the limited common elements.
(2)(a) Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions. This paragraph is intended to clarify existing law and applies to associations existing on October 1, 2008.
(b) There shall not be any material alteration of, or substantial addition to, the common elements of any condominium operated by a multicondominium association unless approved in the manner provided in the declaration of the affected condominium or condominiums as originally recorded or as amended under the procedures provided therein. If a declaration as originally recorded or as amended under the procedures provided therein does not specify a procedure for approving such an alteration or addition, the approval of 75 percent of the total voting interests of each affected condominium is required. This subsection does not prohibit a provision in any declaration, articles of incorporation, or bylaws as originally recorded or as amended under the procedures provided therein requiring the approval of unit owners in any condominium operated by the same association or requiring board approval before a material alteration or substantial addition to the common elements is permitted. This paragraph is intended to clarify existing law and applies to associations existing on the effective date of this act.
(c) There shall not be any material alteration or substantial addition made to association real property operated by a multicondominium association, except as provided in the declaration, articles of incorporation, or bylaws as originally recorded or as amended under the procedures provided therein. If the declaration, articles of incorporation, or bylaws as originally recorded or as amended under the procedures provided therein do not specify the procedure for approving an alteration or addition to association real property, the approval of 75 percent of the total voting interests of the association is required. This paragraph is intended to clarify existing law and applies to associations existing on the effective date of this act.
(3) A unit owner shall not do anything within his or her unit or on the common elements which would adversely affect the safety or soundness of the common elements or any portion of the association property or condominium property which is to be maintained by the association.
(4) Any unit owner may display one portable, removable United States flag in a respectful way and, on Armed Forces Day, Memorial Day, Flag Day, Independence Day, and Veterans Day, may display in a respectful way portable, removable official flags, not larger than 41/2 feet by 6 feet, that represent the United States Army, Navy, Air Force, Marine Corps, or Coast Guard, regardless of any declaration rules or requirements dealing with flags or decorations.
(5) Each board of administration shall adopt hurricane shutter specifications for each building within each condominium operated by the association which shall include color, style, and other factors deemed relevant by the board. All specifications adopted by the board must comply with the applicable building code.
(a) The board may,
subject to s. 718.3026 and the approval of a majority of voting interests
of the residential condominium, install hurricane shutters, impact glass,
code-compliant windows or doors, or other types of code-compliant
hurricane protection that comply with or exceed the applicable building
code. However, a vote of the owners is not required if the maintenance,
repair, and replacement of hurricane shutters, impact glass,
code-compliant windows or doors, or other types of code-compliant
hurricane protection are the responsibility of the association pursuant to
the declaration of condominium. If hurricane protection or laminated glass
or window film architecturally designed to function as hurricane
protection that complies with or exceeds the current applicable building
code has been previously installed, the board may not install hurricane
shutters, impact glass, code-compliant windows or doors, or other types of
code-compliant hurricane protection except upon approval by a majority
vote of the voting interests.
(b) The association is responsible for the maintenance, repair, and replacement of the hurricane shutters, impact glass, code-compliant windows or doors, or other types of code-compliant hurricane protection authorized by this subsection if such property is the responsibility of the association pursuant to the declaration of condominium. If the hurricane shutters, impact glass, code-compliant windows or doors, or other types of code-compliant hurricane protection are the responsibility of the unit owners pursuant to the declaration of condominium, the maintenance, repair, and replacement of such items are the responsibility of the unit owner.
(c) The board may operate shutters, impact glass, code-compliant windows or doors, or other types of code-compliant hurricane protection installed pursuant to this subsection without permission of the unit owners only if such operation is necessary to preserve and protect the condominium property and association property. The installation, replacement, operation, repair, and maintenance of such shutters, impact glass, code-compliant windows or doors, or other types of code-compliant hurricane protection in accordance with the procedures set forth in this paragraph are not a material alteration to the common elements or association property within the meaning of this section.
(d) Notwithstanding any other provision in the condominium documents, if approval is required by the documents, a board may not refuse to approve the installation or replacement of hurricane shutters, impact glass, code-compliant windows or doors, or other types of code-compliant hurricane protection by a unit owner conforming to the specifications adopted by the board.
(6) An association may not refuse the request of a unit owner for a reasonable accommodation for the attachment on the mantel or frame of the door of the unit owner of a religious object not to exceed 3 inches wide, 6 inches high, and 1.5 inches deep.
(7) Notwithstanding the provisions of this section or the governing documents of a condominium or a multicondominium association, the board of administration may, without any requirement for approval of the unit owners, install upon or within the common elements or association property solar collectors, clotheslines, or other energy-efficient devices based on renewable resources for the benefit of the unit owners.
History -- s. 1, ch. 76-222; s. 1, ch. 89-161; s. 8, ch. 90-151; s. 6, ch. 91-103; s. 5, ch. 91-426; s. 4, ch. 92-49; s. 8, ch. 94-350; s. 43, ch. 95-274; s. 855, ch. 97-102; s. 54, ch. 2000-302; s. 10, ch. 2002-27; s. 1, ch. 2003-28; s. 9, ch. 2008-28; s. 26, ch. 2008-191; s. 89, ch. 2009-21; s. 59, ch. 2010-176; s. 4, ch. 2011-196; s. 4, ch. 2013-188.
718.114 Association
powers
An association may enter into agreements to acquire leaseholds, memberships, and other possessory or use interests in lands or facilities such as country clubs, golf courses, marinas, and other recreational facilities, regardless of whether the lands or facilities are contiguous to the lands of the condominium, if such lands and facilities are intended to provide enjoyment, recreation, or other use or benefit to the unit owners. All of these leaseholds, memberships, and other possessory or use interests existing or created at the time of recording the declaration must be stated and fully described in the declaration. Subsequent to the recording of the declaration, agreements acquiring these leaseholds, memberships, or other possessory or use interests which are not entered into within 12 months of the date of the recording of the certificate of a surveyor and mapper pursuant to s. 718.104(4)(e) or the recording of an instrument that transfers title to a unit in the condominium which is not accompanied by a recorded assignment of developer rights in favor of the grantee of such unit, whichever occurs first, are a material alteration or substantial addition to the real property that is association property, and the association may not acquire or enter into such agreements except upon a vote of, or written consent by, a majority of the total voting interests or as authorized by the declaration as provided in s. 718.113. The declaration may provide that the rental, membership fees, operations, replacements, and other expenses are common expenses and may impose covenants and restrictions concerning their use and may contain other provisions not inconsistent with this chapter. A condominium association may conduct bingo games as provided in s. 849.0931.
History -- s. 1, ch. 76-222; s. 4, ch. 79-314; s. 9, ch. 90-151; s. 1, ch. 91-67; s. 7, ch. 91-103; s. 2, ch. 91-206; s. 5, ch. 91-426; ss. 2, 6, ch. 92-280; s. 1, ch. 93-160; s. 4, ch. 2007-173; s. 3, ch. 2007-228; s. 5, ch. 2011-196; s. 6, ch. 2013-122.
718.115 Common
expenses and common surplus
(1)(a) Common expenses include the expenses of the operation, maintenance, repair, replacement, or protection of the common elements and association property, costs of carrying out the powers and duties of the association, and any other expense, whether or not included in the foregoing, designated as common expense by this chapter, the declaration, the documents creating the association, or the bylaws. Common expenses also include reasonable transportation services, insurance for directors and officers, road maintenance and operation expenses, in-house communications, and security services, which are reasonably related to the general benefit of the unit owners even if such expenses do not attach to the common elements or property of the condominium. However, such common expenses must either have been services or items provided on or after the date control of the association is transferred from the developer to the unit owners or must be services or items provided for in the condominium documents or bylaws. Unless the manner of payment or allocation of expenses is otherwise addressed in the declaration of condominium, the expenses of any items or services required by any federal, state, or local governmental entity to be installed, maintained, or supplied to the condominium property by the association, including, but not limited to, firesafety equipment or water and sewer service where a master meter serves the condominium, shall be common expenses whether or not such items or services are specifically identified as common expenses in the declaration of condominium, articles of incorporation, or bylaws of the association.
(b) The common expenses of a condominium within a multicondominium are the common expenses directly attributable to the operation of that condominium. The common expenses of a multicondominium association do not include the common expenses directly attributable to the operation of any specific condominium or condominiums within the multicondominium. This paragraph is intended to clarify existing law and applies to associations existing on the effective date of this act.
(c) The common expenses of a multicondominium association may include categories of expenses related to the property or common elements within a specific condominium in the multicondominium if such property or common elements are areas in which all members of the multicondominium association have use rights or from which all members receive tangible economic benefits. Such common expenses of the association shall be identified in the declaration or bylaws as originally recorded or as amended under the procedures provided therein of each condominium within the multicondominium association. This paragraph is intended to clarify existing law and applies to associations existing on the effective date of this act.
(d)
If provided in the declaration, the cost of communications services as
defined in chapter 202, information services, or Internet services
obtained pursuant to a bulk contract is a common expense. If the
declaration does not provide for the cost of such services as a common
expense, the board may enter into such a contract, and the cost of the
service will be a common expense. The cost for the services under a bulk
rate contract may be allocated on a per-unit basis rather than a
percentage basis if the declaration provides for other than an equal
sharing of common expenses, and any contract entered into before July 1,
1998, in which the cost of the service is not equally divided among all
unit owners, may be changed by vote of a majority of the voting interests
present at a regular or special meeting of the association, to allocate
the cost equally among all units. The contract must be for at least 2
years.
1. Any
contract made by the board on or after July 1, 1998, may be canceled by
a majority of the voting interests present at the next regular or
special meeting of the association. Any member may make a motion to
cancel the contract, but if no motion is made or if such motion fails to
obtain the required majority at the next regular or special meeting,
whichever occurs first, following the making of the contract, such
contract shall be deemed ratified for the term therein expressed.
2. Such
contract must provide, and is deemed to provide if not expressly set
forth, that any hearing-impaired or legally blind unit owner who does
not occupy the unit with a non-hearing-impaired or sighted person, or
any unit owner receiving supplemental security income under Title XVI of
the Social Security Act or food assistance as administered by the
Department of Children and Families pursuant to s. 414.31, may
discontinue the cable or video service without incurring disconnect
fees, penalties, or subsequent service charges, and, as to such units,
the owners are not required to pay any common expenses charge related to
such service. If fewer than all members of an association share the
expenses of cable or video service, the expense shall be shared equally
by all participating unit owners. The association may use the provisions
of s. 718.116 to enforce payment of the shares of such costs by the unit
owners receiving cable or video service.
(e) The expense of installation, replacement, operation, repair, and maintenance of hurricane shutters, impact glass, code-compliant windows or doors, or other types of code-compliant hurricane protection by the board pursuant to s. 718.113(5) constitutes a common expense and shall be collected as provided in this section if the association is responsible for the maintenance, repair, and replacement of the hurricane shutters, impact glass, code-compliant windows or doors, or other types of code-compliant hurricane protection pursuant to the declaration of condominium. However, if the maintenance, repair, and replacement of the hurricane shutters, impact glass, code-compliant windows or doors, or other types of code-compliant hurricane protection are the responsibility of the unit owners pursuant to the declaration of condominium, the cost of the installation of the hurricane shutters, impact glass, code-compliant windows or doors, or other types of code-compliant hurricane protection is not a common expense and shall be charged individually to the unit owners based on the cost of installation of the hurricane shutters, impact glass, code-compliant windows or doors, or other types of code-compliant hurricane protection appurtenant to the unit. Notwithstanding s. 718.116(9), and regardless of whether or not the declaration requires the association or unit owners to maintain, repair, or replace hurricane shutters, impact glass, code-compliant windows or doors, or other types of code-compliant hurricane protection, a unit owner who has previously installed hurricane shutters in accordance with s. 718.113(5) that comply with the current applicable building code shall receive a credit when the shutters are installed; a unit owner who has previously installed impact glass or code-compliant windows or doors that comply with the current applicable building code shall receive a credit when the impact glass or code-compliant windows or doors are installed; and a unit owner who has installed other types of code-compliant hurricane protection that comply with the current applicable building code shall receive a credit when the same type of other code-compliant hurricane protection is installed, and the credit shall be equal to the pro rata portion of the assessed installation cost assigned to each unit. However, such unit owner remains responsible for the pro rata share of expenses for hurricane shutters, impact glass, code-compliant windows or doors, or other types of code-compliant hurricane protection installed on common elements and association property by the board pursuant to s. 718.113(5) and remains responsible for a pro rata share of the expense of the replacement, operation, repair, and maintenance of such shutters, impact glass, code-compliant windows or doors, or other types of code-compliant hurricane protection.
(f) Common expenses include the costs of insurance acquired by the association under the authority of s. 718.111(11), including costs and contingent expenses required to participate in a self-insurance fund authorized and approved pursuant to s. 624.462.
(g) If any unpaid share of common expenses or assessments is extinguished by foreclosure of a superior lien or by a deed in lieu of foreclosure thereof, the unpaid share of common expenses or assessments are common expenses collectible from all the unit owners in the condominium in which the unit is located.
(2) Except as otherwise provided by this chapter, funds for payment of the common expenses of a condominium shall be collected by assessments against the units in that condominium in the proportions or percentages provided in that condominium’s declaration. In a residential condominium, or mixed-use condominium created after January 1, 1996, each unit’s share of the common expenses of the condominium and common surplus of the condominium shall be the same as the unit’s appurtenant ownership interest in the common elements.
(3) Common surplus is owned by unit owners in the same shares as their ownership interest in the common elements.
(4)(a) Funds for payment of the common expenses of a condominium within a multicondominium shall be collected as provided in subsection (2). Common expenses of a multicondominium association shall be funded by assessments against all unit owners in the association in the proportion or percentage set forth in the declaration as required by s. 718.104(4)(h) or s. 718.110(12), as applicable.
(b) In a multicondominium association, the total common surplus owned by a unit owner consists of that owner’s share of the common surplus of the association plus that owner’s share of the common surplus of the condominium in which the owner’s unit is located, in the proportion or percentage set forth in the declaration as required by s. 718.104(4)(h) or s. 718.110(12), as applicable.
History -- s. 1, ch. 76-222; s. 1, ch. 77-174; s. 7, ch. 84-368; s. 1, ch. 88-148; s. 11, ch. 90-151; s. 8, ch. 91-103; s. 3, ch. 91-116; ss. 5, 8, ch. 91-426; s. 5, ch. 92-49; s. 9, ch. 94-350; s. 3, ch. 96-396; s. 4, ch. 98-322; s. 55, ch. 2000-302; s. 11, ch. 2002-27; s. 5, ch. 2007-80; s. 10, ch. 2008-28; s. 4, ch. 2008-240; s. 11, ch. 2010-174; s. 40, ch. 2010-209; s. 5, ch. 2013-188
718.116
Assessments; liability; lien and priority; interest; collection
(1)(a)
A
unit owner, regardless of how his or her title has been acquired,
including by purchase at a foreclosure sale or by deed in lieu of
foreclosure, is liable for all assessments which come due while he or
she is the unit owner. Additionally, a unit owner is jointly and
severally liable with the previous owner for all unpaid assessments that
came due up to the time of transfer of title. This liability is without
prejudice to any right the owner may have to recover from the previous
owner the amounts paid by the owner. For the purposes of this paragraph,
the term “previous owner” does not include an association that
acquires title to a delinquent property through foreclosure or by deed
in lieu of foreclosure. A present unit owner’s liability for unpaid
assessments is limited to any unpaid assessments that accrued before the
association acquired title to the delinquent property through
foreclosure or by deed in lieu of foreclosure.
(b)1. The liability of a first mortgagee or its successor or assignees who acquire title to a unit by foreclosure or by deed in lieu of foreclosure for the unpaid assessments that became due before the mortgagee’s acquisition of title is limited to the lesser of:
a. The unit’s unpaid common expenses and regular periodic assessments which accrued or came due during the 12 months immediately preceding the acquisition of title and for which payment in full has not been received by the association; or
b. One percent of the original mortgage debt. The provisions of this paragraph apply only if the first mortgagee joined the association as a defendant in the foreclosure action. Joinder of the association is not required if, on the date the complaint is filed, the association was dissolved or did not maintain an office or agent for service of process at a location which was known to or reasonably discoverable by the mortgagee.
2. An association, or its successor or assignee, that acquires title to a unit through the foreclosure of its lien for assessments is not liable for any unpaid assessments, late fees, interest, or reasonable attorney’s fees and costs that came due before the association’s acquisition of title in favor of any other association, as defined in s. 718.103(2) or s. 720.301(9), which holds a superior lien interest on the unit. This subparagraph is intended to clarify existing law.
(c) The person acquiring title shall pay the amount owed to the association within 30 days after transfer of title. Failure to pay the full amount when due shall entitle the association to record a claim of lien against the parcel and proceed in the same manner as provided in this section for the collection of unpaid assessments.
(d) With respect to each timeshare unit, each owner of a timeshare estate therein is jointly and severally liable for the payment of all assessments and other charges levied against or with respect to that unit pursuant to the declaration or bylaws, except to the extent that the declaration or bylaws may provide to the contrary.
(e) Notwithstanding the provisions of paragraph (b), a first mortgagee or its successor or assignees who acquire title to a condominium unit as a result of the foreclosure of the mortgage or by deed in lieu of foreclosure of the mortgage shall be exempt from liability for all unpaid assessments attributable to the parcel or chargeable to the previous owner which came due prior to acquisition of title if the first mortgage was recorded prior to April 1, 1992. If, however, the first mortgage was recorded on or after April 1, 1992, or on the date the mortgage was recorded, the declaration included language incorporating by reference future amendments to this chapter, the provisions of paragraph (b) shall apply.
(f) The provisions of this subsection are intended to clarify existing law, and shall not be available in any case where the unpaid assessments sought to be recovered by the association are secured by a lien recorded prior to the recording of the mortgage. Notwithstanding the provisions of chapter 48, the association shall be a proper party to intervene in any foreclosure proceeding to seek equitable relief.
(g) For purposes of this subsection, the term “successor or assignee” as used with respect to a first mortgagee includes only a subsequent holder of the first mortgage.
(2) The liability for assessments may not be avoided by waiver of the use or enjoyment of any common element or by abandonment of the unit for which the assessments are made.
(3) Assessments and installments on assessments which are not paid when due bear interest at the rate provided in the declaration, from the due date until paid. The rate may not exceed the rate allowed by law, and, if no rate is provided in the declaration, interest accrues at the rate of 18 percent per year. If provided by the declaration or bylaws, the association may, in addition to such interest, charge an administrative late fee of up to the greater of $25 or 5 percent of each delinquent installment for which the payment is late. Any payment received by an association must be applied first to any interest accrued by the association, then to any administrative late fee, then to any costs and reasonable attorney’s fees incurred in collection, and then to the delinquent assessment. The foregoing is applicable notwithstanding any restrictive endorsement, designation, or instruction placed on or accompanying a payment. A late fee is not subject to chapter 687 or s. 718.303(4).
(4) If the association is authorized by the declaration or bylaws to approve or disapprove a proposed lease of a unit, the grounds for disapproval may include, but are not limited to, a unit owner being delinquent in the payment of an assessment at the time approval is sought.
(5)(a) The association has a lien on each condominium parcel to secure the payment of assessments. Except as otherwise provided in subsection (1) and as set forth below, the lien is effective from and shall relate back to the recording of the original declaration of condominium, or, in the case of lien on a parcel located in a phase condominium, the last to occur of the recording of the original declaration or amendment thereto creating the parcel. However, as to first mortgages of record, the lien is effective from and after recording of a claim of lien in the public records of the county in which the condominium parcel is located. Nothing in this subsection shall be construed to bestow upon any lien, mortgage, or certified judgment of record on April 1, 1992, including the lien for unpaid assessments created herein, a priority which, by law, the lien, mortgage, or judgment did not have before that date.
(b) To be valid, a claim of lien must state the description of the condominium parcel, the name of the record owner, the name and address of the association, the amount due, and the due dates. It must be executed and acknowledged by an officer or authorized agent of the association. The lien is not effective 1 year after the claim of lien was recorded unless, within that time, an action to enforce the lien is commenced. The 1-year period is automatically extended for any length of time during which the association is prevented from filing a foreclosure action by an automatic stay resulting from a bankruptcy petition filed by the parcel owner or any other person claiming an interest in the parcel. The claim of lien secures all unpaid assessments that are due and that may accrue after the claim of lien is recorded and through the entry of a final judgment, as well as interest and all reasonable costs and attorney’s fees incurred by the association incident to the collection process. Upon payment in full, the person making the payment is entitled to a satisfaction of the lien.
(c) By recording a notice in substantially the following form, a unit owner or the unit owner’s agent or attorney may require the association to enforce a recorded claim of lien against his or her condominium parcel:
NOTICE OF CONTEST OF LIEN
TO: (Name and address of association) You are notified that the undersigned contests the claim of lien filed by you on , (year) , and recorded in Official Records Book at Page , of the public records of County, Florida, and that the time within which you may file suit to enforce your lien is limited to 90 days from the date of service of this notice. Executed this day of , (year) .
Signed: (Owner or Attorney)
After notice of contest of lien has been recorded, the clerk of the circuit court shall mail a copy of the recorded notice to the association by certified mail, return receipt requested, at the address shown in the claim of lien or most recent amendment to it and shall certify to the service on the face of the notice. Service is complete upon mailing. After service, the association has 90 days in which to file an action to enforce the lien; and, if the action is not filed within the 90-day period, the lien is void. However, the 90-day period shall be extended for any length of time during which the association is prevented from filing its action because of an automatic stay resulting from the filing of a bankruptcy petition by the unit owner or by any other person claiming
an interest in the parcel.
(d)
A
release of lien must be in substantially the following form:
RELEASE
OF LIEN
The
undersigned lienor, in consideration of the final payment in the amount of
$ , hereby waives and
releases its lien and right to claim a lien for unpaid assessments through, (year),
recorded in the Official Records Book at Page, of the
public records of County, Florida, for the following described real property:
UNIT
NO. OF (NAME
OF CONDOMINIUM), A CONDOMINIUM AS SET FORTH IN THE
DECLARATION OF CONDOMINIUM AND THE EXHIBITS ANNEXED THERETO AND FORMING A
PART THEREOF, RECORDED IN OFFICIAL RECORDS BOOK ,
PAGE , OF THE PUBLIC
RECORDS OF COUNTY,
FLORIDA. THE ABOVE DESCRIPTION INCLUDES, BUT IS NOT LIMITED TO, ALL
APPURTENANCES TO THE CONDOMINIUM UNIT ABOVE DESCRIBED, INCLUDING THE
UNDIVIDED INTEREST IN THE COMMON ELEMENTS OF SAID CONDOMINIUM.
(Signature
of Authorized Agent) (Signature
of Witness)
(Print
Name) (Print
Name)
(Signature
of Witness)
(Print
Name)
Sworn
to (or affirmed) and subscribed before me this
day of, (year),
by (name of
person making statement).
(Signature
of Notary Public)
(Print,
type, or stamp commissioned name of Notary Public)
Personally
Known OR Produced as identification.
(6)(a) The association may bring an action in its name to foreclose a lien for assessments in the manner a mortgage of real property is foreclosed and may also bring an action to recover a money judgment for the unpaid assessments without waiving any claim of lien. The association is entitled to recover its reasonable attorney’s fees incurred in either a lien foreclosure action or an action to recover a money
judgment for unpaid assessments.
(b)
No
foreclosure judgment may be entered until at least 30 days after the
association gives written notice to the unit owner of its intention to
foreclose its lien to collect the unpaid assessments. The notice must be
in substantially the following form:
DELINQUENT
ASSESSMENT
This
letter is to inform you a Claim of Lien has been filed against your
property because you have not paid the (type
of assessment) assessment to (name
of association) . The association intends to
foreclose the lien and collect the unpaid amount within 30 days of this
letter being provided to you.
You
owe the interest accruing from (month/year)
to the present. As of the date of this letter, the total amount due with
interest is $ . All
costs of any action and interest from this day forward will also be
charged to your account.
Any
questions concerning this matter should be directed to (insert
name, addresses, and telephone numbers of association representative).
If
this notice is not given at least 30 days before the foreclosure action is
filed, and if the unpaid assessments, including those coming due after the
claim of lien is recorded, are paid before the entry of a final judgment
of foreclosure, the association shall not recover attorney’s fees or
costs. The notice must be given by delivery of a copy of it to the unit
owner or by certified or registered mail, return receipt requested,
addressed to the unit owner at his or her last known address; and, upon
such mailing, the notice shall be deemed to have been given, and the court
shall proceed with the foreclosure action and may award attorney’s fees
and costs as permitted by law. The notice requirements of this subsection
are satisfied if the unit owner records a notice of contest of lien as
provided in subsection (5). The notice requirements of this subsection do
not apply if an action to foreclose a mortgage on the condominium unit is
pending before any court; if the rights of the association would be
affected by such foreclosure; and if actual, constructive, or substitute
service of process has been made on the unit owner.
(c) If the unit owner remains in possession of the unit after a foreclosure judgment has been entered, the court, in its discretion, may require the unit owner to pay a reasonable rental for the unit. If the unit is rented or leased during the pendency of the foreclosure action, the association is entitled to the appointment of a receiver to collect the rent. The expenses of the receiver shall be paid by the party which does not prevail in the foreclosure action.
(d) The association has the power to purchase the condominium parcel at the foreclosure sale and to hold, lease, mortgage, or convey it.
(7) A first mortgagee acquiring title to a condominium parcel as a result of foreclosure, or a deed in lieu of foreclosure, may not, during the period of its ownership of such parcel, whether or not such parcel is unoccupied, be excused from the payment of some or all of the common expenses coming due during the period of such ownership.
(8) Within 15 days after receiving a written request therefor from a unit owner or his or her designee, or a unit mortgagee or his or her designee, the association shall provide a certificate signed by an officer or agent of the association stating all assessments and other moneys owed to the association by the unit owner with respect to the condominium parcel.
(a) Any person other than the owner who relies upon such certificate shall be protected thereby.
(b) A summary proceeding pursuant to s. 51.011 may be brought to compel compliance with this subsection, and in any such action the prevailing party is entitled to recover reasonable attorney’s fees.
(c) Notwithstanding any limitation on transfer fees contained in s. 718.112(2)(i), the association or its authorized agent may charge a reasonable fee for the preparation of the certificate. The amount of the fee must be included on the certificate.
(d) The authority to charge a fee for the certificate shall be established by a written resolution adopted by the board or provided by a written management, bookkeeping, or maintenance contract and is payable upon the preparation of the certificate. If the certificate is requested in conjunction with the sale or mortgage of a unit but the closing does not occur and no later than 30 days after the closing date for which the certificate was sought the preparer receives a written request, accompanied by reasonable documentation, that the sale did not occur from a payor that is not the unit owner, the fee shall be refunded to that payor within 30 days after receipt of the request. The refund is the obligation of the unit owner, and the association may collect it from that owner in the same manner as an assessment as provided in this section.
(9)(a) A unit owner may not be excused from payment of the unit owner’s share of common expenses unless all other unit owners are likewise proportionately excluded from payment, except as provided in subsection (1) and in the following cases:
1. If authorized by the declaration, a developer who is offering units for sale may elect to be excused from payment of assessments against those unsold units for a stated period of time after the declaration is recorded. However, the developer must pay common expenses incurred during such period which exceed regular periodic assessments against other unit owners in the same condominium. The stated period must terminate no later than the first day of the fourth calendar month following the month in which the first closing occurs of a purchase contract for a unit in that condominium. If a developer-controlled association has maintained all insurance coverage required by s. 718.111(11)(a), common expenses incurred during the stated period resulting from a natural disaster or an act of God occurring during the stated period, which are not covered by proceeds from insurance maintained by the association, may be assessed against all unit owners owning units on the date of such natural disaster or act of God, and their respective successors and assigns, including the developer with respect to units owned by the developer. In the event of such an assessment, all units shall be assessed in accordance with s. 718.115(2).
2. A developer who owns condominium units, and who is offering the units for sale, may be excused from payment of assessments against those unsold units for the period of time the developer has guaranteed to all purchasers or other unit owners in the same condominium that assessments will not exceed a stated dollar amount and that the developer will pay any common expenses that exceed the guaranteed amount. Such guarantee may be stated in the purchase contract, declaration, prospectus, or written agreement between the developer and a majority of the unit owners other than the developer and may provide that, after the initial guarantee period, the developer may extend the guarantee for one or more stated periods. If a developer-controlled association has maintained all insurance coverage required by s. 718.111(11)(a), common expenses incurred during a guarantee period, as a result of a natural disaster or an act of God occurring during the same guarantee period, which are not covered by the proceeds from such insurance, may be assessed against all unit owners owning units on the date of such natural disaster or act of God, and their successors and assigns, including the developer with respect to units owned by the developer. Any such assessment shall be in accordance with s. 718.115(2) or (4), as applicable.
(b) If the purchase contract, declaration, prospectus, or written agreement between the developer and a majority of unit owners other than the developer provides for the developer to be excused from payment of assessments under paragraph (a), only regular periodic assessments for common expenses as provided for in the declaration and prospectus and disclosed in the estimated operating budget shall be used for payment of common expenses during any period in which the developer is excused. Accordingly, no funds which are receivable from unit purchasers or unit owners and payable to the association, including capital contributions or startup funds collected from unit purchasers at closing, may be used for payment of such common expenses.
(c) If a developer of a multicondominium is excused from payment of assessments under paragraph (a), the developer’s financial obligation to the multicondominium association during any period in which the developer is excused from payment of assessments is as follows:
1. The developer shall pay the common expenses of a condominium affected by a guarantee, including the funding of reserves as provided in the adopted annual budget of that condominium, which exceed the regular periodic assessments at the guaranteed level against all other unit owners within that condominium.
2. The developer shall pay the common expenses of a multicondominium association, including the funding of reserves as provided in the adopted annual budget of the association, which are allocated to units within a condominium affected by a guarantee and which exceed the regular periodic assessments against all other unit owners within that condominium.
(10) The specific purpose or purposes of any special assessment, including any contingent special assessment levied in conjunction with the purchase of an insurance policy authorized by s. 718.111(11), approved in accordance with the condominium documents shall be set forth in a written notice of such assessment sent or delivered to each unit owner. The funds collected pursuant to a special assessment shall be used only for the specific purpose or purposes set forth in such notice. However, upon completion of such specific purpose or purposes, any excess funds will be considered common surplus, and may, at the discretion of the board, either be returned to the unit owners or applied as a credit toward future assessments.
(11)(a) If the unit is occupied by a tenant and the unit owner is delinquent in paying any monetary obligation due to the association, the association may make a written demand that the tenant pay to the association the subsequent rental payments and continue to make such payments until all monetary obligations of the unit owner related to the unit have been paid in full to the association. The tenant must pay the monetary obligations to the association until the association releases the tenant or the tenant discontinues tenancy in the unit.
1. The association must provide the tenant a notice, by hand delivery or United States mail, in substantially the following form:
Pursuant to section 718.116(11), Florida Statutes, the association demands that you pay your rent directly to the condominium association and continue doing so until the association notifies you otherwise.
Payment due the condominium association may be in the same form as you paid your landlord and must be sent by United States mail or hand delivery to (full address) , payable to (name) .
Your obligation to pay your rent to the association begins immediately, unless you have already paid rent to your landlord for the current period before receiving this notice. In that case, you must provide the association written proof of your payment within 14 days after receiving this notice and your obligation to pay rent to the association would then begin with the next rental period.
Pursuant to section 718.116(11), Florida Statutes, your payment of rent to the association gives you complete immunity from any claim for the rent by your landlord for all amounts timely paid to the association.
2. The association must mail written notice to the unit owner of the association’s demand that the tenant make payments to the association.
3. The association shall, upon request, provide the tenant with written receipts for payments made.
4. A tenant is immune from any claim by the landlord or unit owner related to the rent timely paid to the association after the association has made written demand.
(b) If the tenant paid rent to the landlord or unit owner for a given rental period before receiving the demand from the association and provides written evidence to the association of having paid the rent within 14 days after receiving the demand, the tenant shall begin making rental payments to the association for the following rental period and shall continue making rental payments to the association to be credited against the monetary obligations of the unit owner until the association releases the tenant or the tenant discontinues tenancy in the unit.
(c) The liability of the tenant may not exceed the amount due from the tenant to the tenant’s landlord. The tenant’s landlord shall provide the tenant a credit against rents due to the landlord in the amount of moneys paid to the association.
(d) The association may issue notice under s. 83.56 and sue for eviction under ss. 83.59-83.625 as if the association were a landlord under part II of chapter 83 if the tenant fails to pay a required payment to the association after written demand has been made to the tenant. However, the association is not otherwise considered a landlord under chapter 83 and specifically has no obligations under s. 83.51.
(e) The tenant does not, by virtue of payment of monetary obligations to the association, have any of the rights of a unit owner to vote in any election or to examine the books and records of the association.
(f) A court may supersede the effect of this subsection by appointing a receiver.
History -- s. 1, ch. 76-222; s. 1, ch. 77-174; s. 9, ch. 77-221; s. 7, ch. 77-222; s. 6, ch. 78-328; s. 8, ch. 84-368; s. 12, ch. 90-151; s. 9, ch. 91-103; ss. 4, 5, ch. 91-426; s. 6, ch. 92-49; s. 10, ch. 94-350; s. 87, ch. 95-211; s. 856, ch. 97-102; s. 7, ch. 98-322; s. 33, ch. 99-6; s. 1, ch. 2000-201; s. 56, ch. 2000-302; s. 7, ch. 2003-14; s. 6, ch. 2007-80; s. 5, ch. 2008-240; s. 12, ch. 2010-174; s. 6, ch. 2011-19
718.117 Termination
of condominium
(1) LEGISLATIVE
FINDINGS
The Legislature finds that condominiums are created as authorized by statute. In circumstances that may create economic waste, areas of disrepair, or obsolescence of a condominium property for its intended use and thereby lower property tax values, the Legislature further finds that it is the public policy of this state to provide by statute a method to preserve the value of the property interests and the rights of alienation thereof that owners have in the condominium property before and after termination. The Legislature further finds that it is contrary to the public policy of this state to require the continued operation of a condominium when to do so constitutes economic waste or when the ability to do so is made impossible by law or regulation. This section applies to all condominiums in this state in existence on or after July 1, 2007.
(2) TERMINATION BECAUSE OF ECONOMIC WASTE OR IMPOSSIBILITY
(a) Notwithstanding any provision in the declaration, the condominium form of ownership of a property may be terminated by a plan of termination approved by the lesser of the lowest percentage of voting interests necessary to amend the declaration or as otherwise provided in the declaration for approval of termination if:
1. The total estimated cost of construction or repairs necessary to construct the intended improvements or restore the improvements to their former condition or bring them into compliance with applicable laws or regulations exceeds the combined fair market value of the units in the condominium after completion of the construction or repairs; or
2. It becomes impossible to operate or reconstruct a condominium to its prior physical configuration because of land use laws or regulations.
(b) Notwithstanding paragraph (a), a condominium in which 75 percent or more of the units are timeshare units may be terminated only pursuant to a plan of termination approved by 80 percent of the total voting interests of the association and the holders of 80 percent of the original principal amount of outstanding recorded mortgage liens of timeshare estates in the condominium, unless the declaration provides for a lower voting percentage.
(c) Notwithstanding paragraph (a), a condominium that includes units and timeshare estates where the improvements have been totally destroyed or demolished may be terminated pursuant to a plan of termination proposed by a unit owner upon the filing of a petition in court seeking equitable relief. Within 10 days after the filing of a petition as provided in this paragraph and in lieu of the requirements of paragraph (15)(a), the petitioner shall record the proposed plan of termination and mail a copy of the proposed plan and a copy of the petition to:
1. If the association has not been dissolved as a matter of law, each member of the board of directors of the association identified in the most recent annual report filed with the Department of State and the registered agent of the association;
2. The managing entity as defined in s. 721.05(22);
3. Each unit owner and each timeshare estate owner at the address reflected in the official records of the association, or, if the association records cannot be obtained by the petitioner, each unit owner and each timeshare estate owner at the address listed in the office of the tax collector for tax notices; and
4. Eachholder of a recorded mortgage lien affecting a unit or timeshare estate at the address appearing on the recorded mortgage or any recorded assignment thereof.
The association, if it has not been dissolved as a matter of law, acting as class representative, or the managing entity as defined in s. 721.05(22), any unit owner, any timeshare estate owner, or any holder of a recorded mortgage lien affecting a unit or timeshare estate may intervene in the proceedings to contest the proposed plan of termination brought pursuant to this paragraph. The provisions of subsection (9), to the extent inconsistent with this paragraph, and subsection (16) are not applicable to a party contesting a plan of termination under this paragraph. If no party intervenes to contest the proposed plan within 45 days after the filing of the petition, the petitioner may move the court to enter a final judgment to authorize implementation of the plan of termination. If a party timely intervenes to contest the proposed plan, the plan may not be implemented until a final judgment has been entered by the court finding that the proposed plan of termination is fair and reasonable and authorizing implementation of the plan.
(3) OPTIONAL TERMINATION
Except as provided in subsection (2) or unless the declaration provides for a lower percentage, the condominium form of ownership may be terminated for all or a portion of the condominium property pursuant to a plan of termination approved by at least 80 percent of the total voting interests of the condominium if no more than 10 percent of the total voting interests of the condominium have rejected the plan of termination by negative vote or by providing written objections. This subsection does not apply to condominiums in which 75 percent or more of the units are timeshare units.
(4)
EXEMPTION
A plan of termination is not an amendment subject to s. 718.110(4). In a partial termination, a plan of termination is not an amendment subject to s. 718.110(4) if the ownership share of the common elements of a surviving unit in the condominium remains in the same proportion to the surviving units as it was before the partial termination.
(5) MORTGAGE LIENHOLDERS
Notwithstanding any provision to the contrary in the declaration or this chapter, approval of a plan of termination by the holder of a recorded mortgage lien affecting a condominium parcel in which fewer than 75 percent of the units are timeshare units is not required unless the plan of termination will result in less than the full satisfaction of the mortgage lien affecting the condominium parcel. If such approval is required and not given, a holder of a recorded mortgage lien who objects to the plan of termination may contest the plan as provided in subsection (16). At the time of sale, the lien shall be transferred to the proportionate share of the proceeds assigned to the condominium parcel in the plan of termination or as subsequently modified by the court.
(6) POWERS IN CONNECTION WITH TERMINATION
The approval of the plan of termination does not terminate the association. It shall continue in existence following approval of the plan of termination with all powers and duties it had before approval of the plan. Notwithstanding any provision to the contrary in the declaration or bylaws, after approval of the plan the board shall:
(a) Employ directors, agents, attorneys, and other professionals to liquidate or conclude its affairs.
(b) Conduct the affairs of the association as necessary for the liquidation or termination.
(c) Carry out contracts and collect, pay, and settle debts and claims for and against the association.
(d) Defend suits brought against the association.
(e) Sue in the name of the association for all sums due or owed to the association or to recover any of its property.
(f) Perform any act necessary to maintain, repair, or demolish unsafe or uninhabitable improvements or other condominium property in compliance with applicable codes.
(g) Sell at public or private sale or exchange, convey, or otherwise dispose of assets of the association for an amount deemed to be in the best interests of the association, and execute bills of sale and deeds of conveyance in the name of the association.
(h) Collect and receive rents, profits, accounts receivable, income, maintenance fees, special assessments, or insurance proceeds for the association.
(i) Contract and do anything in the name of the association which is proper or convenient to terminate the affairs of the association.
(7) NATURAL DISASTERS
(a) If, after a natural disaster, the identity of the directors or their right to hold office is in doubt, if they are deceased or unable to act, if they fail or refuse to act, or if they cannot be located, any interested person may petition the circuit court to determine the identity of the directors or, if found to be in the best interests of the unit owners, to appoint a receiver to conclude the affairs of the association after a hearing following notice to such persons as the court directs. Lienholders shall be given notice of the petition and have the right to propose persons for the consideration by the court as receiver. If a receiver is appointed, the court shall direct the receiver to provide to all unit owners written notice of his or her appointment as receiver. Such notice shall be mailed or delivered within 10 days after the appointment. Notice by mail to a unit owner shall be sent to the address used by the county property appraiser for notice to the unit owner.
(b) The receiver shall have all powers given to the board pursuant to the declaration, bylaws, and subsection (6), and any other powers that are necessary to conclude the affairs of the association and are set forth in the order of appointment. The appointment of the receiver is subject to the bonding requirements of such order. The order shall also provide for the payment of a reasonable fee to the receiver from the sources identified in the order, which may include rents, profits, incomes, maintenance fees, or special assessments collected from the condominium property.
(8) REPORTS AND REPLACEMENT OF RECEIVER
(a) The association, receiver, or termination trustee shall prepare reports each quarter following the approval of the plan of termination setting forth the status and progress of the termination, costs and fees incurred, the date the termination is expected to be completed, and the current financial condition of the association, receivership, or trusteeship and provide copies of the report by regular mail to the unit owners and lienors at the mailing address provided to the association by the unit owners and the lienors.
(b) The unit owners of an association in termination may recall or remove members of the board of administration with or without cause at any time as provided in s. 718.112(2)(j).
(c) The lienors of an association in termination representing at least 50 percent of the outstanding amount of liens may petition the court for the appointment of a termination trustee, which shall be granted upon good cause shown.
(9) PLAN OF TERMINATION
The
plan of termination must be a written document executed in the same manner as
a deed by unit owners having the requisite percentage of voting interests to
approve the plan and by the termination trustee. A copy of the proposed plan
of termination shall be given to all unit owners, in the same manner as for
notice of an annual meeting, at least 14 days prior to the meeting at which
the plan of termination is to be voted upon or prior to or simultaneously with
the distribution of the solicitation seeking execution of the plan of
termination or written consent to or joinder in the plan. A unit owner may
document assent to the plan by executing the plan or by consent to or joinder
in the plan in the manner of a deed. A plan of termination and the consents or
joinders of unit owners and, if required, consents or joinders of mortgagees
must be recorded in the public records of each county in which any portion of
the condominium is located. The plan is effective only upon recordation or at
a later date specified in the plan. If the plan of termination fails to
receive the required approval, the plan shall not be recorded and a new
attempt to terminate the condominium may not be proposed at a meeting or by
solicitation for joinder and consent for 180 days after the date that such
failed plan of termination was first given to all unit owners in the manner as
provided in this subsection.
(10) PLAN OF TERMINATION; REQUIRED PROVISIONS
The plan of termination must specify:
(a) The name, address, and powers of the termination trustee.
(b) A date after which the plan of termination is void if it has not been recorded.
(c) The interests of the respective unit owners in the association property, common surplus, and other assets of the association, which shall be the same as the respective interests of the unit owners in the common elements immediately before the termination, unless otherwise provided in the declaration.
(d) The interests of the respective unit owners in any proceeds from the sale of the condominium property. The plan of termination may apportion those proceeds pursuant to any method prescribed in subsection (12). If, pursuant to the plan of termination, condominium property or real property owned by the association is to be sold following termination, the plan must provide for the sale and may establish any minimum sale terms.
(e) Any interests of the respective unit owners in insurance proceeds or condemnation proceeds that are not used for repair or reconstruction at the time of termination. Unless the declaration expressly addresses the distribution of insurance proceeds or condemnation proceeds, the plan of termination may apportion those proceeds pursuant to any method prescribed in subsection (12).
(11) PLAN OF TERMINATION; OPTIONAL PROVISIONS; CONDITIONAL TERMINATION
(a) The plan of termination may provide that each unit owner retains the exclusive right of possession to the portion of the real estate which formerly constituted the unit if the plan specifies the conditions of possession. In a partial termination, the plan of termination as specified in subsection (10) must also identify the units that survive the partial termination and provide that such units remain in the condominium form of ownership pursuant to an amendment to the declaration of condominium or an amended and restated declaration. In a partial termination, title to the surviving units and common elements that remain part of the condominium property specified in the plan of termination remain vested in the ownership shown in the public records and do not vest in the termination trustee.
(b) In a conditional termination, the plan must specify the conditions for termination. A conditional plan does not vest title in the termination trustee until the plan and a certificate executed by the association with the formalities of a deed, confirming that the conditions in the conditional plan have been satisfied or waived by the requisite percentage of the voting interests, have been recorded. In a partial termination, the plan does not vest title to the surviving units or common elements that remain part of the condominium property in the termination trustee.
(12) ALLOCATION OF PROCEEDS OF SALE OF CONDOMINIUM PROPERTY
(a) Unless the declaration expressly provides for the allocation of the proceeds of sale of condominium property, the plan of termination must first apportion the proceeds between the aggregate value of all units and the value of the common elements, based on their respective fair market values immediately before the termination, as determined by one or more independent appraisers selected by the association or termination trustee. In a partial termination, the aggregate values of the units and common elements that are being terminated must be separately determined, and the plan of termination must specify the allocation of the proceeds of sale for the units and common elements.
(b) The portion of proceeds allocated to the units shall be further apportioned among the individual units. The apportionment is deemed fair and reasonable if it is so determined by the unit owners, who may approve the plan of termination by any of the following methods:
1. The respective values of the units based on the fair market values of the units immediately before the termination, as determined by one or more independent appraisers selected by the association or termination trustee;
2. The respective values of the units based on the most recent market value of the units before the termination, as provided in the county property appraiser’s records; or
3. The respective interests of the units in the common elements specified in the declaration immediately before the termination.
(c) The methods of apportionment in paragraph (b) do not prohibit any other method of apportioning the proceeds of sale allocated to the units agreed upon in the plan of termination. The portion of the proceeds allocated to the common elements shall be apportioned among the units based upon their respective interests in the common elements as provided in the declaration.
(d) Liens that encumber a unit shall be transferred to the proceeds of sale of the condominium property and the proceeds of sale or other distribution of association property, common surplus, or other association assets attributable to such unit in their same priority. In a partial termination, liens that encumber a unit being terminated must be transferred to the proceeds of sale of that portion of the condominium property being terminated which are attributable to such unit. The proceeds of any sale of condominium property pursuant to a plan of termination may not be deemed to be common surplus or association property.
(13) TERMINATION TRUSTEE
The association shall serve as termination trustee unless another person is appointed in the plan of termination. If the association is unable, unwilling, or fails to act as trustee, any unit owner may petition the court to appoint a trustee. Upon the date of the recording or at a later date specified in the plan, title to the condominium property vests in the trustee. Unless prohibited by the plan, the termination trustee shall be vested with the powers given to the board pursuant to the declaration, bylaws, and subsection (6). If the association is not the termination trustee, the trustee’s powers shall be coextensive with those of the association to the extent not prohibited in the plan of termination or the order of appointment. If the association is not the termination trustee, the association shall transfer any association property to the trustee. If the association is dissolved, the trustee shall also have such other powers necessary to conclude the affairs of the association.
(14) TITLE VESTED IN TERMINATION TRUSTEE
If termination is pursuant to a plan of termination under subsection (2) or subsection (3), title to the condominium property being terminated vests in the termination trustee when the plan is recorded or at a later date specified in the plan. The unit owners thereafter become the beneficiaries of the proceeds realized from the plan of termination as set forth in the plan. The termination trustee may deal with the condominium property being terminated or any interest therein if the plan confers on the trustee the authority to protect, conserve, manage, sell, or dispose of the condominium property. The trustee, on behalf of the unit owners, may contract for the sale of real property being terminated, but the contract is not binding on the unit owners until the plan is approved pursuant to subsection (2) or subsection (3).
(15) NOTICE
(a) Within 30 days after a plan of termination has been recorded, the termination trustee shall deliver by certified mail, return receipt requested, notice to all unit owners, lienors of the condominium property, and lienors of all units at their last known addresses that a plan of termination has been recorded. The notice must include the book and page number of the public records in which the plan was recorded, notice that a copy of the plan shall be furnished upon written request, and notice that the unit owner or lienor has the right to contest the fairness of the plan.
(b) The trustee, within 90 days after the effective date of the plan, shall provide to the division a certified copy of the recorded plan, the date the plan was recorded, and the county, book, and page number of the public records in which the plan is recorded.
(16) RIGHT TO CONTEST
A unit owner or lienor may contest a plan of termination by initiating a summary procedure pursuant to s. 51.011 within 90 days after the date the plan is recorded. A unit owner or lienor who does not contest the plan within the 90-day period is barred from asserting or prosecuting a claim against the association, the termination trustee, any unit owner, or any successor in interest to the condominium property. In an action contesting a plan of termination, the person contesting the plan has the burden of pleading and proving that the apportionment of the proceeds from the sale among the unit owners was not fair and reasonable. The apportionment of sale proceeds is presumed fair and reasonable if it was determined pursuant to the methods prescribed in subsection (12). The court shall determine the rights and interests of the parties and order the plan of termination to be implemented if it is fair and reasonable. If the court determines that the plan of termination is not fair and reasonable, the court may void the plan or may modify the plan to apportion the proceeds in a fair and reasonable manner pursuant to this section based upon the proceedings and order the modified plan of termination to be implemented. In such action, the prevailing party shall recover reasonable attorney’s fees and costs.
(17) DISTRIBUTION
(a) Following termination of the condominium, the condominium property, association property, common surplus, and other assets of the association shall be held by the termination trustee pursuant to the plan of termination, as trustee for unit owners and holders of liens on the units, in their order of priority unless otherwise set forth in the plan of termination.
(b) Not less than 30 days before the first distribution, the termination trustee shall deliver by certified mail, return receipt requested, a notice of the estimated distribution to all unit owners, lienors of the condominium property, and lienors of each unit at their last known addresses stating a good faith estimate of the amount of the distributions to each class and the procedures and deadline for notifying the termination trustee of any objections to the amount. The deadline must be at least 15 days after the date the notice was mailed. The notice may be sent with or after the notice required by subsection (15). If a unit owner or lienor files a timely objection with the termination trustee, the trustee need not distribute the funds and property allocated to the respective unit owner or lienor until the trustee has had a reasonable time to determine the validity of the adverse claim. In the alternative, the trustee may interplead the unit owner, lienor, and any other person claiming an interest in the unit and deposit the funds allocated to the unit in the court registry, at which time the condominium property, association property, common surplus, and other assets of the association are free of all claims and liens of the parties to the suit. In an interpleader action, the trustee and prevailing party may recover reasonable attorney’s fees and costs.
(c) The proceeds from any sale of condominium property or association property and any remaining condominium property or association property, common surplus, and other assets shall be distributed in the following priority:
1. To pay the reasonable termination trustee’s fees and costs and accounting fees and costs.
2. To lienholders of liens recorded prior to the recording of the declaration.
3. To purchase-money lienholders on units to the extent necessary to satisfy their liens; however, the distribution may not exceed a unit owner’s share of the proceeds.
4. To lienholders of liens of the association which have been consented to under s. 718.121(1).
5. To creditors of the association, as their interests appear.
6. To unit owners, the proceeds of any sale of condominium property subject to satisfaction of liens on each unit in their order of priority, in shares specified in the plan of termination, unless objected to by a unit owner or lienor as provided in paragraph (b).
7. To unit owners, the remaining condominium property, subject to satisfaction of liens on each unit in their order of priority, in shares specified in the plan of termination, unless objected to by a unit owner or a lienor as provided in paragraph (b).
8. To unit owners, the proceeds of any sale of association property, the remaining association property, common surplus, and other assets of the association, subject to satisfaction of liens on each unit in their order of priority, in shares specified in the plan of termination, unless objected to by a unit owner or a lienor as provided in paragraph (b).
(d) After determining that all known debts and liabilities of an association in the process of termination have been paid or adequately provided for, the termination trustee shall distribute the remaining assets pursuant to the plan of termination. If the termination is by court proceeding or subject to court supervision, the distribution may not be made until any period for the presentation of claims ordered by the court has elapsed.
(e) Assets held by an association upon a valid condition requiring return, transfer, or conveyance, which condition has occurred or will occur, shall be returned, transferred, or conveyed in accordance with the condition. The remaining association assets shall be distributed pursuant to paragraph (c).
(f) Distribution may be made in money, property, or securities and in installments or as a lump sum, if it can be done fairly and ratably and in conformity with the plan of termination. Distribution shall be made as soon as is reasonably consistent with the beneficial liquidation of the assets.
(18) ASSOCIATION STATUS
The termination of a condominium does not change the corporate status of the association that operated the condominium property. The association continues to exist to conclude its affairs, prosecute and defend actions by or against it, collect and discharge obligations, dispose of and convey its property, and collect and divide its assets, but not to act except as necessary to conclude its affairs. In a partial termination, the association may continue as the condominium association for the property that remains subject to the declaration of condominium.
(19) CREATION OF ANOTHER CONDOMINIUM
The termination or partial termination of a condominium does not bar the filing of a new declaration of condominium by the termination trustee, or the trustee’s successor in interest, for the terminated property or any portion thereof. The partial termination of a condominium may provide for the simultaneous filing of an amendment to the declaration of condominium or an amended and restated declaration of condominium by the condominium association for any portion of the property not terminated from the condominium form of ownership.
(20) EXCLUSION This section does not apply to the termination of a condominium incident to a merger of that condominium with one or more other condominiums under s. 718.110(7).
History -- s. 1, ch. 76-222; s. 4, ch. 88-148; s. 47, ch. 95-274; s. 3, ch. 98-195; s. 57, ch. 2000-302; s. 1, ch. 2007-226; s. 11, ch. 2008-28; s. 2, ch. 2008-202; s. 6, ch. 2008-240; s. 13, ch. 2010-174; s. 7, ch. 2011-196.
718.118 Equitable
relief
In the event of substantial damage to or destruction of all
or a substantial part of the condominium property, and if the property
is not repaired, reconstructed, or rebuilt within a reasonable period of
time, any unit owner may petition a court for equitable relief, which
may include a termination of the condominium and a partition.
History -- s. 1, ch. 76-222.
718.119 Limitation
of liability (1) The liability of the owner of a
unit for common expenses is limited to the amounts for which he or she
is assessed for common expenses from time to time in accordance with
this chapter, the declaration, and bylaws.
(2) The owner of a unit may be
personally liable for the acts or omissions of the association in
relation to the use of the common elements, but only to the extent of
his or her pro rata share of that liability in the same percentage as
his or her interest in the common elements, and then in no case shall
that liability exceed the value of his or her unit.
(3) In any legal action in which the
association may be exposed to liability in excess of insurance coverage
protecting it and the unit owners, the association shall give notice of
the exposure within a reasonable time to all unit owners, and they shall
have the right to intervene and defend.
History -- s. 1, ch. 76-222; s. 6, ch.
77-221; s. 5, ch. 77-222; s. 857, ch. 97-102.
718.120 Separate
taxation of condominium parcels; survival of declaration after tax sale;
assessment of timeshare estates
(1) Ad valorem taxes, benefit taxes,
and special assessments by taxing authorities shall be assessed against
the condominium parcels and not upon the condominium property as a
whole. No ad valorem tax, benefit tax, or special assessment, including
those made by special districts, drainage districts, or water management
districts, may be separately assessed against recreational facilities or
other common elements if such facilities or common elements are owned by
the condominium association or are owned jointly by the owners of the
condominium parcels. Each condominium parcel shall be separately
assessed for ad valorem taxes and special assessments as a single
parcel. The taxes and special assessments levied against each
condominium parcel shall constitute a lien only upon the condominium
parcel assessed and upon no other portion of the condominium property.
(2) All provisions of a declaration
relating to a condominium parcel which has been sold for taxes or
special assessments survive and are enforceable after the issuance of a
tax deed or master's deed, upon foreclosure of an assessment, a
certificate or lien, a tax deed, tax certificate, or tax lien, to the
same extent that they would be enforceable against a voluntary grantee
of the title immediately prior to the delivery of the tax deed, master's
deed, or clerk's certificate of title as provided in s. 197.573.
(3) Condominium property divided into
fee timeshare real property shall be assessed for purposes of ad valorem
taxes and special assessments as provided in s. 192.037.
History -- s. 1, ch. 76-222; s. 58, ch.
82-226; s. 1, ch. 84-261; s. 217, ch. 85-342; s. 4, ch. 91-116.
718.121 Liens
(1) Subsequent to recording the
declaration and while the property remains subject to the declaration, no
liens of any nature are valid against the condominium property as a whole
except with the unanimous consent of the unit owners. During this period,
liens may arise or be created only against individual condominium parcels.
(2) Labor performed on or materials
furnished to a unit shall not be the basis for the filing of a lien pursuant
to part I of chapter 713, the Construction Lien Law, against the unit or
condominium parcel of any unit owner not expressly consenting to or requesting
the labor or materials. Labor performed on or materials furnished to the
common elements are not the basis for a lien on the common elements, but if
authorized by the association, the labor or materials are deemed to be
performed or furnished with the express consent of each unit owner and may be
the basis for the filing of a lien against all condominium parcels in the
proportions for which the owners are liable for common expenses.
(3) If a lien against two or more
condominium parcels becomes effective, each owner may relieve his or her
condominium parcel of the lien by exercising any of the rights of a property
owner under chapter 713, or by payment of the proportionate amount
attributable to his or her condominium parcel. Upon the payment, the lienor
shall release the lien of record for that condominium parcel.
(4) Except
as otherwise provided in this chapter, no lien may be filed by the association
against a condominium unit until 30 days after the date on which a notice of
intent to file a lien has been delivered to the owner by registered or
certified mail, return receipt requested, and by first-class United States
mail to the owner at his or her last address as reflected in the records of
the association, if the address is within the United States, and delivered to
the owner at the address of the unit if the owner’s address as reflected in
the records of the association is not the unit address. If the address
reflected in the records is outside the United States, sending the notice to
that address and to the unit address by first-class United States mail is
sufficient. Delivery of the notice shall be deemed given upon mailing as
required by this subsection. The notice must be in substantially the following
form:
NOTICE
OF INTENT
TO RECORD A CLAIM OF LIEN
RE:
Unit of (name
of association)
The
following amounts are currently due on your account to (name
of association) , and must be paid within 30 days after
your receipt of this letter. This letter shall serve as the association’s
notice of intent to record a Claim of Lien against your property no sooner
than 30 days after your receipt of this letter, unless you pay in full the
amounts set forth below:
Maintenance
due (dates) $ .
Late
fee, if applicable $ .
Interest
through (dates) * $ .
Certified
mail charges $ .
Other
costs $ .
TOTAL
OUTSTANDING $ .
*Interest
accrues at the rate of
percent per annum.
History -- s. 1, ch. 76-222; s. 26, ch. 90-109; s. 858, ch. 97-102; s. 12, ch. 2008-28; s. 3, ch. 2008-202; s. 4, ch. 2014-146.
718.122
Unconscionability of certain leases; rebuttable presumption (1) A lease pertaining to use by
condominium unit owners of recreational or other common facilities,
irrespective of the date on which such lease was entered into, is
presumptively unconscionable if all of the following elements exist:
(a) The lease was executed by persons
none of whom at the time of the execution of the lease were elected by
condominium unit owners, other than the developer, to represent their
interests;
(b) The lease requires either the
condominium association or the condominium unit owners to pay real
estate taxes on the subject real property;
(c) The lease requires either the
condominium association or the condominium unit owners to insure
buildings or other facilities on the subject real property against fire
or any other hazard;
(d) The lease requires either the
condominium association or the condominium unit owners to perform some
or all maintenance obligations pertaining to the subject real property
or facilities located upon the subject real property;
(e) The lease requires either the
condominium association or the condominium unit owners to pay rents to
the lessor for a period of 21 years or more;
(f) The lease provides that failure of
the lessee to make payments of rents due under the lease either creates,
establishes, or permits establishment of a lien upon individual
condominium units of the condominium to secure claims for rent;
(g) The lease requires an annual rental
which exceeds 25 percent of the appraised value of the leased property
as improved, provided that, for purposes of this paragraph, "annual
rental" means the amount due during the first 12 months of the
lease for all units, regardless of whether such units were in fact
occupied or sold during that period, and "appraised value"
means the appraised value placed upon the leased property the first tax
year after the sale of a unit in the condominium;
(h) The lease provides for a periodic
rental increase; and
(i) The lease or other condominium
documents require that every transferee of a condominium unit must
assume obligations under the lease.
(2) The Legislature expressly finds
that many leases involving use of recreational or other common
facilities by residents of condominiums were entered into by parties
wholly representative of the interests of a condominium developer at a
time when the condominium unit owners not only did not control the
administration of their condominium, but also had little or no voice in
such administration. Such leases often contain numerous obligations on
the part of either or both a condominium association and condominium
unit owners with relatively few obligations on the part of the lessor.
Such leases may or may not be unconscionable in any given case.
Nevertheless, the Legislature finds that a combination of certain
onerous obligations and circumstances warrants the establishment of a
rebuttable presumption of unconscionability of certain leases, as
specified in subsection (1). The presumption may be rebutted by a lessor
upon the showing of additional facts and circumstances to justify and
validate what otherwise appears to be an unconscionable lease under this
section. Failure of a lease to contain all the enumerated elements shall
neither preclude a determination of unconscionability of the lease nor
raise a presumption as to its conscionability. It is the intent of the
Legislature that this section is remedial and does not create any new
cause of action to invalidate any condominium lease, but shall operate
as a statutory prescription on procedural matters in actions brought on
one or more causes of action existing at the time of the execution of
such lease.
(3) Any provision of the Florida
Statutes to the contrary notwithstanding, neither the statute of
limitations nor laches shall prohibit unit owners from maintaining a
cause of action under the provisions of this section.
History -- s. 3, ch. 77-221; s. 11, ch.
94-350.
718.1224
Prohibition against SLAPP suits (1) It is the intent of the
Legislature to protect the right of condominium unit owners to exercise their
rights to instruct their representatives and petition for redress of
grievances before the various governmental entities of this state as protected
by the First Amendment to the United States Constitution and s. 5, Art. I of
the State Constitution. The Legislature recognizes that strategic lawsuits
against public participation, or "SLAPP suits," as they are
typically referred to, have occurred when association members are sued by
individuals, business entities, or governmental entities arising out of a
condominium unit owner's appearance and presentation before a governmental
entity on matters related to the condominium association. However, it is the
public policy of this state that governmental entities, business
organizations, and individuals not engage in SLAPP suits, because such actions
are inconsistent with the right of condominium unit owners to participate in
the state's institutions of government. Therefore, the Legislature finds and
declares that prohibiting such lawsuits by governmental entities, business
entities, and individuals against condominium unit owners who address matters
concerning their condominium association will preserve this fundamental state
policy, preserve the constitutional rights of condominium unit owners, and
ensure the continuation of representative government in this state. It is the
intent of the Legislature that such lawsuits be expeditiously disposed of by
the courts. As used in this subsection, the term "governmental
entity" means the state, including the executive, legislative, and
judicial branches of government; the independent establishments of the state,
counties, municipalities, districts, authorities, boards, or commissions; or
any agencies of these branches that are subject to chapter 286.
(2) A governmental entity, business
organization, or individual in this state may not file or cause to be filed
through its employees or agents any lawsuit, cause of action, claim,
cross-claim, or counterclaim against a condominium unit owner without merit
and solely because such condominium unit owner has exercised the right to
instruct his or her representatives or the right to petition for redress of
grievances before the various governmental entities of this state, as
protected by the First Amendment to the United States Constitution and s. 5,
Art. I of the State Constitution.
(3) A condominium unit owner sued by
a governmental entity, business organization, or individual in violation of
this section has a right to an expeditious resolution of a claim that the suit
is in violation of this section. A condominium unit owner may petition the
court for an order dismissing the action or granting final judgment in favor
of that condominium unit owner. The petitioner may file a motion for summary
judgment, together with supplemental affidavits, seeking a determination that
the governmental entity's, business organization's, or individual's lawsuit
has been brought in violation of this section. The governmental entity,
business organization, or individual shall thereafter file its response and
any supplemental affidavits. As soon as practicable, the court shall set a
hearing on the petitioner's motion, which shall be held at the earliest
possible time after the filing of the governmental entity's, business
organization's, or individual's response. The court may award the condominium
unit owner sued by the governmental entity, business organization, or
individual actual damages arising from the governmental entity's,
individual's, or business organization's violation of this section. A court
may treble the damages awarded to a prevailing condominium unit owner and
shall state the basis for the treble damages award in its judgment. The court
shall award the prevailing party reasonable attorney's fees and costs incurred
in connection with a claim that an action was filed in violation of this
section.
(4) Condominium associations may not
expend association funds in prosecuting a SLAPP suit against a condominium
unit owner.
History -- s.13, ch. 2008-28.
718.1225 Federal
Condominium and Cooperative Abuse Relief Act of 1980; applicability
It
is the intent of the Legislature that the provisions of Title VI of Pub.
L. No. 96-399, other than the exceptions stated in s. 611 of that act,
shall not apply in this state.
History -- s. 6, ch. 82-199.
718.123 Right of
owners to peaceably assemble (1) All common elements, common areas,
and recreational facilities serving any condominium shall be available
to unit owners in the condominium or condominiums served thereby and
their invited guests for the use intended for such common elements,
common areas, and recreational facilities, subject to the provisions of
s. 718.106(4). The entity or entities responsible for the operation of
the common elements, common areas, and recreational facilities may adopt
reasonable rules and regulations pertaining to the use of such common
elements, common areas, and recreational facilities. No entity or
entities shall unreasonably restrict any unit owner's right to peaceably
assemble or right to invite public officers or candidates for public
office to appear and speak in common elements, common areas, and
recreational facilities.
(2) Any owner prevented from exercising
rights guaranteed by subsection (1) may bring an action in the
appropriate court of the county in which the alleged infringement
occurred, and, upon favorable adjudication, the court shall enjoin the
enforcement of any provision contained in any condominium document or
rule which operates to deprive the owner of such rights.
History -- s. 1, ch. 77-222; s. 262, ch.
79-400; s. 2, ch. 81-185; s. 13, ch. 90-151.
718.1232 Cable
television service; resident's right to access without extra charge
No
resident of any condominium dwelling unit, whether tenant or owner,
shall be denied access to any available franchised or licensed cable
television service, nor shall such resident or cable television service
be required to pay anything of value in order to obtain or provide such
service except those charges normally paid for like services by
residents of, or providers of such services to, single-family homes
within the same franchised or licensed area and except for installation
charges as such charges may be agreed to between such resident and the
provider of such services.
History -- s. 16, ch. 81-185.
718.124 Limitation
on actions by association
The statute of limitations for any
actions in law or equity which a condominium association or a
cooperative association may have shall not begin to run until the unit
owners have elected a majority of the members of the board of
administration.
History -- s. 9, ch. 77-222; s. 263, ch.
79-400.
718.125 Attorney's
fees
If a contract or lease between a condominium unit owner or
association and a developer contains a provision allowing attorney's
fees to the developer, should any litigation arise under the provisions
of the contract or lease, the court shall also allow reasonable
attorney's fees to the unit owner or association when the unit owner or
association prevails in any action by or against the unit owner or
association with respect to the contract or lease.
History -- s. 9, ch. 78-340.
718.1255
Alternative dispute resolution; voluntary mediation; mandatory
nonbinding arbitration; legislative findings (1) DEFINITIONS
As used in this
section, the term "dispute" means any disagreement between two or
more parties that involves:
(a) The authority of the board of
directors, under this chapter or association document to:
1. Require any owner to take any
action, or not to take any action, involving that owner's unit or the
appurtenances thereto.
2. Alter or add to a common area or
element.
(b) The failure of a governing body,
when required by this chapter or an association document, to:
1. Properly conduct elections.
2. Give adequate notice of meetings
or other actions.
3. Properly conduct meetings.
4. Allow inspection of books and
records.
"Dispute" does not include any disagreement that primarily involves:
title to any unit or common element; the interpretation or enforcement of any
warranty; the levy of a fee or assessment, or the collection of an assessment
levied against a party; the eviction or other removal of a tenant from a unit;
alleged breaches of fiduciary duty by one or more directors; or claims for
damages to a unit based upon the alleged failure of the association to
maintain the common elements or condominium property.
(2) VOLUNTARY MEDIATION
Voluntary
mediation through Citizen Dispute Settlement Centers as provided for in s.
44.201 is encouraged.
(3) LEGISLATIVE FINDINGS
(a) The Legislature finds that unit
owners are frequently at a disadvantage when litigating against an
association. Specifically, a condominium association, with its statutory
assessment authority, is often more able to bear the costs and expenses of
litigation than the unit owner who must rely on his or her own financial
resources to satisfy the costs of litigation against the association.
(b) The Legislature finds that
alternative dispute resolution has been making progress in reducing court
dockets and trials and in offering a more efficient, cost-effective option to
court litigation. However, the Legislature also finds that alternative dispute
resolution should not be used as a mechanism to encourage the filing of
frivolous or nuisance suits.
(c) There exists a need to develop a
flexible means of alternative dispute resolution that directs disputes to the
most efficient means of resolution.
(d) The high cost and significant
delay of circuit court litigation faced by unit owners in the state can be
alleviated by requiring nonbinding arbitration and mediation in appropriate
cases, thereby reducing delay and attorney's fees while preserving the right
of either party to have its case heard by a jury, if applicable, in a court of
law.
(4) MANDATORY NONBINDING ARBITRATION
AND MEDIATION OF DISPUTES
The Division of Florida Condominiums, Timeshares,
and Mobile Homes of the Department of Business and Professional Regulation
shall employ full-time attorneys to act as arbitrators to conduct the
arbitration hearings provided by this chapter. The division may also certify
attorneys who are not employed by the division to act as arbitrators to
conduct the arbitration hearings provided by this section. No person may be
employed by the department as a full-time arbitrator unless he or she is a
member in good standing of The Florida Bar. The department shall adopt rules
of procedure to govern such arbitration hearings including mediation incident
thereto. The decision of an arbitrator shall be final; however, a decision
shall not be deemed final agency action. Nothing in this provision shall be
construed to foreclose parties from proceeding in a trial de novo unless the
parties have agreed that the arbitration is binding. If judicial proceedings
are initiated, the final decision of the arbitrator shall be admissible in
evidence in the trial de novo.
(a) Prior to the institution of
court litigation, a party to a dispute shall petition the division for
nonbinding arbitration. The petition must be accompanied by a filing fee in
the amount of $50. Filing fees collected under this section must be used to
defray the expenses of the alternative dispute resolution program.
(b) The petition must recite, and
have attached thereto, supporting proof that the petitioner gave the
respondents:
1. Advance written notice of the
specific nature of the dispute;
2. A demand for relief, and a
reasonable opportunity to comply or to provide the relief; and
3. Notice of the intention to file
an arbitration petition or other legal action in the absence of a resolution
of the dispute.
Failure to include the allegations or proof of compliance with these
prerequisites requires dismissal of the petition without prejudice.
(c) Upon receipt, the petition shall
be promptly reviewed by the division to determine the existence of a dispute
and compliance with the requirements of paragraphs (a) and (b). If emergency
relief is required and is not available through arbitration, a motion to stay
the arbitration may be filed. The motion must be accompanied by a verified
petition alleging facts that, if proven, would support entry of a temporary
injunction, and if an appropriate motion and supporting papers are filed, the
division may abate the arbitration pending a court hearing and disposition of
a motion for temporary injunction.
(d) Upon determination by the
division that a dispute exists and that the petition substantially meets the
requirements of paragraphs (a) and (b) and any other applicable rules, a copy
of the petition shall be served by the division upon all respondents.
(e) Before or after the filing of the
respondents' answer to the petition, any party may request that the arbitrator
refer the case to mediation under this section and any rules adopted by the
division. Upon receipt of a request for mediation, the division shall promptly
contact the parties to determine if there is agreement that mediation would be
appropriate. If all parties agree, the dispute must be referred to mediation.
Notwithstanding a lack of an agreement by all parties, the arbitrator may
refer a dispute to mediation at any time.
(f) Upon referral of a case to mediation, the
parties must select a mutually acceptable mediator. To assist in the
selection, the arbitrator shall provide the parties with a list of both
volunteer and paid mediators that have been certified by the division under s.
718.501. If the parties are unable to agree on a mediator within the time
allowed by the arbitrator, the arbitrator shall appoint a mediator from the
list of certified mediators. If a case is referred to mediation, the parties
shall attend a mediation conference, as scheduled by the parties and the
mediator. If any party fails to attend a duly noticed mediation conference,
without the permission or approval of the arbitrator or mediator, the
arbitrator must impose sanctions against the party, including the striking of
any pleadings filed, the entry of an order of dismissal or default if
appropriate, and the award of costs and attorneys' fees incurred by the other
parties. Unless otherwise agreed to by the parties or as provided by order of
the arbitrator, a party is deemed to have appeared at a mediation conference
by the physical presence of the party or its representative having full
authority to settle without further consultation, provided that an association
may comply by having one or more representatives present with full authority
to negotiate a settlement and recommend that the board of administration
ratify and approve such a settlement within 5 days from the date of the
mediation conference. The parties shall share equally the expense of
mediation, unless they agree otherwise.
(g) The purpose of mediation as
provided for by this section is to present the parties with an opportunity to
resolve the underlying dispute in good faith, and with a minimum expenditure
of time and resources.
(h) Mediation proceedings must
generally be conducted in accordance with the Florida Rules of Civil
Procedure, and these proceedings are privileged and confidential to the same
extent as court-ordered mediation. Persons who are not parties to the dispute
are not allowed to attend the mediation conference without the consent of all
parties, with the exception of counsel for the parties and corporate
representatives designated to appear for a party. If the mediator declares an
impasse after a mediation conference has been held, the arbitration proceeding
terminates, unless all parties agree in writing to continue the arbitration
proceeding, in which case the arbitrator's decision shall be binding or
nonbinding, as agreed upon by the parties; in the arbitration proceeding, the
arbitrator shall not consider any evidence relating to the unsuccessful
mediation except in a proceeding to impose sanctions for failure to appear at
the mediation conference. If the parties do not agree to continue arbitration,
the arbitrator shall enter an order of dismissal, and either party may
institute a suit in a court of competent jurisdiction. The parties may seek to
recover any costs and attorneys' fees incurred in connection with arbitration
and mediation proceedings under this section as part of the costs and fees
that may be recovered by the prevailing party in any subsequent litigation.
(i) Arbitration shall be conducted
according to rules adopted by the division. The filing of a petition for
arbitration shall toll the applicable statute of limitations.
(j) At the request of any party to
the arbitration, the arbitrator shall issue subpoenas for the attendance of
witnesses and the production of books, records, documents, and other evidence
and any party on whose behalf a subpoena is issued may apply to the court for
orders compelling such attendance and production. Subpoenas shall be served
and shall be enforceable in the manner provided by the Florida Rules of Civil
Procedure. Discovery may, in the discretion of the arbitrator, be permitted in
the manner provided by the Florida Rules of Civil Procedure. Rules adopted by
the division may authorize any reasonable sanctions except contempt for a
violation of the arbitration procedural rules of the division or for the
failure of a party to comply with a reasonable nonfinal order issued by an
arbitrator which is not under judicial review.
(k) The arbitration decision shall
be presented to the parties in writing. An arbitration decision is final in
those disputes in which the parties have agreed to be bound. An arbitration
decision is also final if a complaint for a trial de novo is not filed in a
court of competent jurisdiction in which the condominium is located within 30
days. The right to file for a trial de novo entitles the parties to file a
complaint in the appropriate trial court for a judicial resolution of the
dispute. The prevailing party in an arbitration proceeding shall be awarded
the costs of the arbitration and reasonable attorney's fees in an amount
determined by the arbitrator. Such an award shall include the costs and
reasonable attorney's fees incurred in the arbitration proceeding as well as
the costs and reasonable attorney's fees incurred in preparing for and
attending any scheduled mediation.
(l) The party who files a complaint
for a trial de novo shall be assessed the other party's arbitration costs,
court costs, and other reasonable costs, including attorney's fees,
investigation expenses, and expenses for expert or other testimony or evidence
incurred after the arbitration hearing if the judgment upon the trial de novo
is not more favorable than the arbitration decision. If the judgment is more
favorable, the party who filed a complaint for trial de novo shall be awarded
reasonable court costs and attorney's fees.
(m) Any party to an arbitration
proceeding may enforce an arbitration award by filing a petition in a court of
competent jurisdiction in which the condominium is located. A petition may not
be granted unless the time for appeal by the filing of a complaint for trial
de novo has expired. If a complaint for a trial de novo has been filed, a
petition may not be granted with respect to an arbitration award that has been
stayed. If the petition for enforcement is granted, the petitioner shall
recover reasonable attorney's fees and costs incurred in enforcing the
arbitration award. A mediation settlement may also be enforced through the
county or circuit court, as applicable, and any costs and fees incurred in the
enforcement of a settlement agreement reached at mediation must be awarded to
the prevailing party in any enforcement action.
(5) DISPUTES INVOLVING ELECTION
IRREGULARITIES
Every arbitration petition received by the division and
required to be filed under this section challenging the legality of the
election of any director of the board of administration must be handled on an
expedited basis in the manner provided by the division's rules for recall
arbitration disputes.
(6) APPLICABILITY
This
section does not apply to a nonresidential condominium unless otherwise
specifically provided for in the declaration of the nonresidential
condominium.
History -- s. 4, ch. 82-199; s. 4, ch. 85-60; s. 10, ch. 91-103; s. 5, ch. 91-426; s. 7, ch. 92-49; s. 232, ch. 94-218; s. 12, ch. 94-350; s. 37, ch. 95-274; s. 859, ch. 97-102; s. 2, ch. 97-301; s. 12, ch. 2002-27; s. 14, ch. 2008-28; s. 47, ch. 2008-240; s. 3, ch. 2014-74
718.1256
Condominiums as residential property
For the purpose of property
and casualty insurance risk classification, condominiums shall be
classed as residential property.
History -- s. 23, ch. 94-350.
718.1265
Association emergency powers (1) To the extent allowed by law and
unless specifically prohibited by the declaration of condominium, the
articles, or the bylaws of an association, and consistent with the provisions
of s. 617.0830, the board of administration, in response to damage caused by
an event for which a state of emergency is declared pursuant to s. 252.36 in
the locale in which the condominium is located, may, but is not required to,
exercise the following powers:
(a) Conduct board meetings and
membership meetings with notice given as is practicable. Such notice may be
given in any practicable manner, including publication, radio, United States
mail, the Internet, public service announcements, and conspicuous posting on
the condominium property or any other means the board deems reasonable under
the circumstances. Notice of board decisions may be communicated as provided
in this paragraph.
(b) Cancel and reschedule any
association meeting.
(c) Name as assistant officers
persons who are not directors, which assistant officers shall have the same
authority as the executive officers to whom they are assistants during the
state of emergency to accommodate the incapacity or unavailability of any
officer of the association.
(d) Relocate the association's
principal office or designate alternative principal offices.
(e) Enter into agreements with local
counties and municipalities to assist counties and municipalities with debris
removal.
(f) Implement a disaster plan before
or immediately following the event for which a state of emergency is declared
which may include, but is not limited to, shutting down or off elevators;
electricity; water, sewer, or security systems; or air conditioners.
(g) Based upon advice of emergency
management officials or upon the advice of licensed professionals retained by
the board, determine any portion of the condominium property unavailable for
entry or occupancy by unit owners, family members, tenants, guests, agents, or
invitees to protect the health, safety, or welfare of such persons.
(h) Require the evacuation of the
condominium property in the event of a mandatory evacuation order in the
locale in which the condominium is located. Should any unit owner or other
occupant of a condominium fail or refuse to evacuate the condominium property
where the board has required evacuation, the association shall be immune from
liability or injury to persons or property arising from such failure or
refusal.
(i) Based upon advice of emergency
management officials or upon the advice of licensed professionals retained by
the board, determine whether the condominium property can be safely inhabited
or occupied. However, such determination is not conclusive as to any
determination of habitability pursuant to the declaration.
(j) Mitigate further damage,
including taking action to contract for the removal of debris and to prevent
or mitigate the spread of fungus, including, but not limited to, mold or
mildew, by removing and disposing of wet drywall, insulation, carpet,
cabinetry, or other fixtures on or within the condominium property, even if
the unit owner is obligated by the declaration or law to insure or replace
those fixtures and to remove personal property from a unit.
(k) Contract, on behalf of any unit
owner or owners, for items or services for which the owners are otherwise
individually responsible, but which are necessary to prevent further damage to
the condominium property. In such event, the unit owner or owners on whose
behalf the board has contracted are responsible for reimbursing the
association for the actual costs of the items or services, and the association
may use its lien authority provided by s. 718.116 to enforce collection of the
charges. Without limitation, such items or services may include the drying of
units, the boarding of broken windows or doors, and the replacement of damaged
air conditioners or air handlers to provide climate control in the units or
other portions of the property.
(l) Regardless of any provision to
the contrary and even if such authority does not specifically appear in the
declaration of condominium, articles, or bylaws of the association, levy
special assessments without a vote of the owners.
(m) Without unit owners' approval,
borrow money and pledge association assets as collateral to fund emergency
repairs and carry out the duties of the association when operating funds are
insufficient. This paragraph does not limit the general authority of the
association to borrow money, subject to such restrictions as are contained in
the declaration of condominium, articles, or bylaws of the association.
(2) The special powers authorized
under subsection (1) shall be limited to that time reasonably necessary to
protect the health, safety, and welfare of the association and the unit owners
and the unit owners' family members, tenants, guests, agents, or invitees and
shall be reasonably necessary to mitigate further damage and make emergency
repairs.
History -- s. 15, ch. 2008-28.
718.127
Receivership notification Upon the appointment of a receiver by a court
for any reason relating to a condominium association, the court shall direct
the receiver to provide to all unit owners written notice of his or her
appointment as receiver. Such notice shall be mailed or delivered within 10
days after the appointment. Notice by mail to a unit owner shall be sent to
the address used by the county property appraiser for notice to the unit
owner.
History -- s. 16, ch. 2008-28; s. 4, ch. 2008-202.
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