Florida Senate - 2013                          SENATOR AMENDMENT
       Bill No. CS for SB 696
       
       
       
       
       
       
                                Barcode 735266                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                  Floor: WD            .                                
             05/01/2013 05:27 PM       .                                
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       Senator Stargel moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Between lines 415 and 416
    4  insert:
    5         Section 4. Subsection (7) of section 721.15, Florida
    6  Statutes, is amended to read:
    7         721.15 Assessments for common expenses.—
    8         (7)(a) A purchaser, regardless of how her or his timeshare
    9  estate or timeshare license has been acquired, including a
   10  purchaser at a judicial sale, is personally liable for all
   11  assessments for common expenses which come due while the
   12  purchaser is the owner of such interest. A successor in interest
   13  is jointly and severally liable with her or his predecessor in
   14  interest for all unpaid assessments against such predecessor up
   15  to the time of transfer of the timeshare interest to such
   16  successor without prejudice to any right a successor in interest
   17  may have to recover from her or his predecessor in interest any
   18  amounts assessed against such predecessor and paid by such
   19  successor. The predecessor in interest, its agent, or a person
   20  providing resale transfer services for the predecessor in
   21  interest pursuant to s. 721.17(3) or its agent, shall deliver to
   22  the managing entity provide the managing entity with a copy of
   23  the recorded deed of conveyance if the interest is a timeshare
   24  estate or a copy of the instrument of transfer if the interest
   25  is a timeshare license, together with containing the name and
   26  mailing address of the successor in interest within 15 days
   27  after the date of transfer. After such delivery the successor in
   28  interest shall be listed by the managing entity as the owner of
   29  the timeshare interest on the books and records of the timeshare
   30  plan. The managing entity shall not be liable to any person for
   31  any inaccuracy in the books and records of the timeshare plan
   32  arising from the failure of the predecessor in interest to
   33  timely and correctly notify the managing entity of the name and
   34  mailing address of the successor in interest.
   35         (b) Within 30 days after receiving a written request from a
   36  timeshare interest owner, from an agent designated in writing by
   37  such timeshare owner, or from a person providing resale transfer
   38  services for a consumer timeshare reseller pursuant to s.
   39  721.17(3), a managing entity shall provide a certificate, signed
   40  by an officer or agent of the managing entity, to the person
   41  requesting the certificate. The certificate must state the
   42  amount of any assessment, transfer fee, or other moneys
   43  currently owed to the managing entity, and of any assessment,
   44  transfer fee, or other moneys approved by the managing entity to
   45  become due within the next 90 days, with respect to the
   46  designated consumer resale timeshare interest, as well as any
   47  information contained in the books and records of the timeshare
   48  plan regarding the legal description and use plan related to the
   49  designated consumer resale timeshare interest.
   50         1. A person who relies upon such certificate shall be
   51  protected thereby.
   52         2. A summary proceeding pursuant to s. 51.011 may be
   53  brought to compel compliance with this paragraph, and in any
   54  such action the prevailing party may recover its reasonable
   55  attorney fees and court costs.
   56         3. The managing entity may charge a fee not to exceed $150
   57  for the preparation and delivery of the certificate. The amount
   58  of the fee must be included on the certificate.
   59         Section 5. Section 721.17, Florida Statutes, is amended to
   60  read:
   61         721.17 Transfer of interest; resale transfer agreements.—
   62         (1) Except in the case of a timeshare plan subject to the
   63  provisions of chapter 718 or chapter 719, no developer, owner of
   64  the underlying fee, or owner of the underlying personal property
   65  shall sell, lease, assign, mortgage, or otherwise transfer his
   66  or her interest in the accommodations and facilities of the
   67  timeshare plan except by an instrument evidencing the transfer
   68  recorded in the public records of the county in which such
   69  accommodations and facilities are located or, with respect to
   70  personal property timeshare plans, in full compliance with s.
   71  721.08. The instrument shall be executed by both the transferor
   72  and transferee and shall state:
   73         (a)(1) That its provisions are intended to protect the
   74  rights of all purchasers of the plan.
   75         (b)(2) That its terms may be enforced by any prior or
   76  subsequent timeshare purchaser so long as that purchaser is not
   77  in default of his or her obligations.
   78         (c)(3) That so long as a purchaser remains in good standing
   79  with respect to her or his obligations under the timeshare
   80  instrument, including making all payments to the managing entity
   81  required by the timeshare instrument with respect to the annual
   82  common expenses of the timeshare plan, the transferee shall
   83  honor all rights of such purchaser relating to the subject
   84  accommodation or facility as reflected in the timeshare
   85  instrument.
   86         (d)(4) That the transferee will fully honor all rights of
   87  timeshare purchasers to cancel their contracts and receive
   88  appropriate refunds.
   89         (e)(5) That the obligations of the transferee under such
   90  instrument will continue to exist despite any cancellation or
   91  rejection of the contracts between the developer and purchaser
   92  arising out of bankruptcy proceedings.
   93         (2) Should any transfer of the interest of the developer,
   94  the owner of the underlying fee, or the owner of the underlying
   95  property occur in a manner which is not in compliance with
   96  subsection (1) this section, the terms set forth in this section
   97  shall be presumed to be a part of the transfer and shall be
   98  deemed to be included in the instrument of transfer. Notice
   99  shall be mailed to each purchaser of record within 30 days after
  100  the transfer unless such transfer does not affect the
  101  purchaser’s rights in or use of the timeshare plan. Persons who
  102  hold mortgages or liens on the property constituting a timeshare
  103  plan before the filed public offering statement of such plan is
  104  approved by the division shall not be considered transferees for
  105  the purposes of subsection (1) this section.
  106         (3)(a) In the course of offering timeshare interest
  107  transfer services, a person may not:
  108         1. Engage in any timeshare interest transfer services for
  109  consideration, or the expectation of receiving consideration,
  110  without first obtaining a written resale transfer agreement
  111  signed by the consumer timeshare reseller which complies with
  112  the provisions of this subsection.
  113         2. Fail to provide both the consumer timeshare reseller and
  114  the escrow agent required by paragraph (c) with an executed copy
  115  of the resale transfer agreement.
  116         3. Fail to comply with the requirements of paragraphs (b)
  117  and (c).
  118         (b) Each resale transfer agreement must contain:
  119         1. A statement that no fee, cost, or other compensation may
  120  be paid to the person providing the timeshare resale transfer
  121  services before the delivery to the consumer timeshare reseller
  122  of written evidence that all promised timeshare interest
  123  transfer services have been performed, including, but not
  124  limited to, delivery to both the consumer timeshare reseller and
  125  the timeshare plan managing entity of a copy of the recorded
  126  instrument or other legal document evidencing the transfer of
  127  ownership of or legal title to the consumer resale timeshare
  128  interest to the transferee, accompanied by the full name,
  129  address, and other known contact information for the transferee.
  130         2. The name, address, current phone number, and current
  131  electronic mail address of the escrow agent required by
  132  paragraph (c).
  133         3. A statement that the person providing the timeshare
  134  resale transfer services will provide the consumer timeshare
  135  reseller with written notice of the full performance of the
  136  timeshare resale transfer services, together with a copy of the
  137  recorded instrument or other legal document evidencing the
  138  transfer of ownership of or legal title to the consumer resale
  139  timeshare interest from the consumer timeshare reseller to a
  140  transferee.
  141         4. A statement in substantially the following form in
  142  conspicuous type immediately preceding the space in the resale
  143  transfer agreement provided for the consumer timeshare
  144  reseller’s signature:
  145  
  146         ...(Name)... has agreed to provide you with timeshare
  147         resale transfer services pursuant to this resale
  148         transfer agreement. After those services have been
  149         fully performed, ...(Name)... is obligated to provide
  150         you with written notice of such full performance and a
  151         copy of the recorded instrument or other legal
  152         document evidencing the transfer of ownership of or
  153         legal title to the consumer resale timeshare interest
  154         to the transferee. Any fee or other compensation paid
  155         by you under this agreement before such full
  156         performance by ...(Name)... must be held in escrow by
  157         the escrow agent specified in this agreement, and
  158         ...(Name)... is prohibited from receiving any such fee
  159         or other compensation until all promised timeshare
  160         interest transfer services have been performed.
  161  
  162         (c)1. Before entering into a resale transfer agreement, a
  163  person providing timeshare resale transfer services shall
  164  establish an escrow account with an escrow agent for the purpose
  165  of protecting the funds or other property of consumer timeshare
  166  resellers required to be escrowed by this subsection. An
  167  attorney who is a member in good standing with The Florida Bar,
  168  a licensed Florida real estate broker in good standing, or a
  169  licensed Florida title insurer or agent in good standing, any of
  170  whom also provides timeshare interest transfer services as
  171  described in this subsection, may serve as escrow agent under
  172  this subsection. The escrow agent shall maintain the escrow
  173  account only in such a manner as to be under the direct
  174  supervision and control of the escrow agent. The escrow agent
  175  has a fiduciary duty to each consumer timeshare reseller to
  176  maintain the escrow account in accordance with good accounting
  177  practices and to release the consumer timeshare reseller’s funds
  178  or other property from escrow only in accordance with this
  179  subsection.
  180         2. All funds or other property that is received from or on
  181  behalf of a consumer timeshare reseller pursuant to a resale
  182  transfer agreement shall be deposited into an escrow account
  183  pursuant to this paragraph. A fee, cost, or other compensation
  184  that is due or that will be paid to the person providing the
  185  timeshare resale transfer services must be held in such escrow
  186  account until the person providing the timeshare resale transfer
  187  services has fully complied with all of its obligations under
  188  the resale transfer agreement and under this subsection.
  189         3. The funds or other property required to be escrowed
  190  hereunder may be released from escrow only as follows:
  191         a. On the order of the person providing the timeshare
  192  resale transfer services upon presentation of an affidavit by
  193  such person that all promised timeshare interest transfer
  194  services have been performed, including delivery to both the
  195  consumer timeshare reseller and the timeshare plan managing
  196  entity of a copy of the recorded instrument or other legal
  197  document evidencing the transfer of ownership of or legal title
  198  to the consumer resale timeshare interest to the transferee.
  199         b. To a managing entity to pay any assessments, transfer
  200  fees, or other moneys owed with respect to the timeshare
  201  interest as set forth in the certificate provided for in s.
  202  721.15(7)(b), or to pay a governmental agency for the purpose of
  203  completing and perfecting the transfer. A managing entity shall
  204  accept any funds remitted to it by an escrow agent pursuant to
  205  this sub-subparagraph.
  206         4.The escrow agent shall retain all resale transfer
  207  agreements, escrow account records, and affidavits received
  208  pursuant to this subsection for a period of 5 years.
  209         (d) A person who provides timeshare resale transfer
  210  services, agent or third-party service provider therefor, or
  211  escrow agent who intentionally fails to comply with the
  212  provisions of this subsection concerning the establishment of an
  213  escrow account, deposits of funds into escrow, withdrawal
  214  therefrom, and maintenance of records commits a felony of the
  215  third degree, punishable as provided in s. 775.082, s. 775.083,
  216  or s. 775.084.
  217         (e) A person may not participate, for consideration or with
  218  the expectation of consideration, in any plan or scheme, a
  219  purpose of which is to transfer a consumer resale timeshare
  220  interest to a transferee that the person knows does not have the
  221  ability, means, or intent to pay all assessments and taxes
  222  associated with the consumer resale timeshare interest.
  223         (f) Providing timeshare interest transfer services with
  224  respect to a consumer resale timeshare interest in a timeshare
  225  property located or offered within this state, or in a multisite
  226  timeshare plan registered or required to be registered to be
  227  offered in this state, including acting as an agent or third
  228  party service provider for a resale service provider,
  229  constitutes operating, conducting, engaging in, or carrying on a
  230  business or business venture in this state for the purposes of
  231  s. 48.193(1).
  232         (g) A managing entity may bring an action to enforce the
  233  provisions of paragraph (e). In any such action, the managing
  234  entity may recover its actual damages, and the prevailing party
  235  may recover its reasonable attorney fees and court costs.
  236         (h) Paragraphs (a)—(d) do not apply to:
  237         1. A resale broker who offers timeshare interest transfer
  238  services to a consumer timeshare reseller, so long as the resale
  239  broker complies in all respects with chapter 475 and with s.
  240  721.20; or
  241         2. An attorney who is a member in good standing with The
  242  Florida Bar or a licensed Florida title insurer or agent in good
  243  standing who offers timeshare interest transfer services to a
  244  consumer timeshare reseller, so long as the total consideration
  245  paid by the consumer timeshare reseller to such person does not
  246  exceed $600, exclusive of any assessments, transfer fees, or
  247  moneys owed with respect to the consumer timeshare resale
  248  interest as set forth in the certificate provided for in s.
  249  721.15(7)(b), and exclusive of any fees owed to a governmental
  250  agency for the purpose of completing and perfecting the
  251  transfer.
  252         (i)This subsection does not apply to the transfer of
  253  ownership of a consumer resale timeshare interest from a
  254  consumer timeshare reseller to the developer or managing entity
  255  of that timeshare plan.
  256  
  257  ================= T I T L E  A M E N D M E N T ================
  258         And the title is amended as follows:
  259         Delete line 9
  260  and insert:
  261         property timeshare plans; amending s. 721.15, F.S.;
  262         requiring a certificate in certain timeshare resale
  263         transfer transactions; amending s. 721.17, F.S.;
  264         prohibiting certain activities related to offering
  265         timeshare interest transfer services; requiring resale
  266         transfer agreements to contain specified information;
  267         requiring the establishment of an escrow account for
  268         certain purposes; providing requirements and duties of
  269         the escrow agent; providing penalties; providing for
  270         applicability; amending s. 721.82, F.S.;