Florida Senate - 2016                        COMMITTEE AMENDMENT
       Bill No. SB 826
       
       
       
       
       
       
                                Ì597842AÎ597842                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  01/26/2016           .                                
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       The Committee on Community Affairs (Abruzzo) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsection (6) of section 723.006, Florida
    6  Statutes, is amended, and subsection (15) is added to that
    7  section, to read:
    8         723.006 Powers and duties of division.—In performing its
    9  duties, the division has the following powers and duties:
   10         (6) With regard to any written complaint alleging a
   11  violation of any provision of this chapter or any rule adopted
   12  promulgated pursuant thereto, the division shall, within 30 days
   13  after receipt of a written complaint, periodically notify, in
   14  writing, the person who filed the complaint of the status of the
   15  complaint. Thereafter, the division shall notify the complainant
   16  of the status of the investigation within 90 days after receipt
   17  of the written complaint. Upon completion of the investigation,
   18  the division investigation, whether probable cause has been
   19  found, and the status of any administrative action, civil
   20  action, or appellate action, and if the division has found that
   21  probable cause exists, it shall notify, in writing, the
   22  complainant and the party complained against of the results of
   23  the investigation and disposition of the complaint.
   24         (15) The division shall adopt rules to implement the board
   25  member training requirements for educational programs as
   26  provided in this chapter. The Department of Business and
   27  Professional Regulation shall publish a notice of proposed rule
   28  pursuant to s. 120.54(3)(a) by October 1, 2016. Such rules shall
   29  include the requirements for content and notice of the board
   30  member training program to assure that providers meet minimum
   31  training requirements.
   32         Section 2. Subsection (5) of section 723.031, Florida
   33  Statutes, is amended to read:
   34         723.031 Mobile home lot rental agreements.—
   35         (5) The rental agreement shall contain the lot rental
   36  amount and services included. An increase in lot rental amount
   37  upon expiration of the term of the lot rental agreement shall be
   38  in accordance with ss. 723.033 and 723.037 or s. 723.059(4),
   39  whichever is applicable, provided that, pursuant to s.
   40  723.059(4), the amount of the lot rental increase is disclosed
   41  and agreed to by the purchaser, in writing. An increase in lot
   42  rental amount shall not be arbitrary or discriminatory between
   43  similarly situated tenants in the park. A No lot rental amount
   44  may not be increased during the term of the lot rental
   45  agreement, except:
   46         (a) When the manner of the increase is disclosed in a lot
   47  rental agreement with a term exceeding 12 months and which
   48  provides for such increases not more frequently than annually.
   49         (b) For pass-through charges as defined in s. 723.003.
   50         (c) That a no charge may not be collected which that
   51  results in payment of money for sums previously collected as
   52  part of the lot rental amount. The provisions hereof
   53  notwithstanding, the mobile home park owner may pass on, at any
   54  time during the term of the lot rental agreement, ad valorem
   55  property taxes, non-ad valorem assessments, and utility charges,
   56  or increases of either, provided that the ad valorem property
   57  taxes, non-ad valorem assessments, and the utility charges are
   58  not otherwise being collected in the remainder of the lot rental
   59  amount and provided further that the passing on of such ad
   60  valorem taxes, non-ad valorem assessments, or utility charges,
   61  or increases of either, was disclosed prior to tenancy, was
   62  being passed on as a matter of custom between the mobile home
   63  park owner and the mobile home owner, or such passing on was
   64  authorized by law. A park owner is deemed to have disclosed the
   65  passing on of ad valorem property taxes and non-ad valorem
   66  assessments if ad valorem property taxes or non-ad valorem
   67  assessments were disclosed as a factor for increasing the lot
   68  rental amount in the prospectus or rental agreement. Such ad
   69  valorem taxes, non-ad valorem assessments, and utility charges
   70  shall be a part of the lot rental amount as defined by this
   71  chapter. The term “non-ad valorem assessments” has the same
   72  meaning as provided in s. 197.3632(1)(d). Other provisions of
   73  this chapter notwithstanding, pass-on charges may be passed on
   74  only within 1 year of the date a mobile home park owner remits
   75  payment of the charge. A mobile home park owner is prohibited
   76  from passing on any fine, interest, fee, or increase in a charge
   77  resulting from a park owner’s payment of the charge after the
   78  date such charges become delinquent. Nothing herein shall
   79  prohibit a park owner and a homeowner from mutually agreeing to
   80  an alternative manner of payment to the park owner of the
   81  charges.
   82         (d) If a notice of increase in lot rental amount is not
   83  given 90 days before the renewal date of the rental agreement,
   84  the rental agreement must remain under the same terms until a
   85  90-day notice of increase in lot rental amount is given. The
   86  notice may provide for a rental term shorter than 1 year in
   87  order to maintain the same renewal date.
   88         Section 3. Subsection (1) of section 723.059, Florida
   89  Statutes, is amended to read:
   90         723.059 Rights of purchaser.—
   91         (1) The purchaser of a mobile home within a mobile home
   92  park may become a tenant of the park if such purchaser would
   93  otherwise qualify with the requirements of entry into the park
   94  under the park rules and regulations, subject to the approval of
   95  the park owner, but such approval may not be unreasonably
   96  withheld. The purchaser of the mobile home may cancel or rescind
   97  the contract for purchase of the mobile home if the purchaser’s
   98  tenancy has not been approved by the park owner 5 days before
   99  the closing of the purchase.
  100         Section 4. Subsection (1) of section 723.075, Florida
  101  Statutes, is amended to read:
  102         723.075 Homeowners’ associations.—
  103         (1) In order to exercise the rights provided in this
  104  chapter s. 723.071, the mobile home owners shall form an
  105  association in compliance with this section and ss. 723.077,
  106  723.078, and 723.079, which shall be a corporation for profit or
  107  not for profit and of which not less than two-thirds of all of
  108  the mobile home owners within the park shall have consented, in
  109  writing, to become members or shareholders. Upon incorporation
  110  of the association such consent by two-thirds of the mobile home
  111  owners, all consenting mobile home owners in the park may become
  112  members or shareholders. The term “member” or “shareholder”
  113  means a mobile home owner who consents to be bound by the
  114  articles of incorporation, bylaws, and policies of the
  115  incorporated homeowners’ association and their successors shall
  116  become members of the association and shall be bound by the
  117  provisions of the articles of incorporation, the bylaws of the
  118  association, and such restrictions as may be properly
  119  promulgated pursuant thereto. The association may not shall have
  120  a no member or shareholder who is not a bona fide owner of a
  121  mobile home located in the park. Upon incorporation and service
  122  of the notice described in s. 723.076, the association shall
  123  become the representative of all the mobile home owners in all
  124  matters relating to this chapter, regardless of whether the
  125  homeowner is a member of the association.
  126         Section 5. Paragraphs (b) and (c) of subsection (2) of
  127  section 723.078, Florida Statutes, are amended to read:
  128         723.078 Bylaws of homeowners’ associations.—
  129         (2) The bylaws shall provide and, if they do not, shall be
  130  deemed to include, the following provisions:
  131         (b) Quorum; voting requirements; proxies.—
  132         1. Unless otherwise provided in the bylaws, 30 percent of
  133  the total membership is required to constitute a quorum.
  134  Decisions shall be made by a majority of members represented at
  135  a meeting at which a quorum is present.
  136         2. A member may not vote by general proxy but may vote by
  137  limited proxies substantially conforming to a limited proxy form
  138  adopted by the division. Limited proxies and general proxies may
  139  be used to establish a quorum. Limited proxies may be used for
  140  votes taken to amend the articles of incorporation or bylaws
  141  pursuant to this section, and any other matters for which this
  142  chapter requires or permits a vote of members, except that no
  143  proxy, limited or general, may be used in the election of board
  144  members. If a mobile home or subdivision lot is owned jointly,
  145  the owners of the mobile home or subdivision lot must be counted
  146  as one for the purpose of determining the number of votes
  147  required for a majority. Only one vote per mobile home or
  148  subdivision lot shall be counted. Any number greater than 50
  149  percent of the total number of votes constitutes a majority.
  150  Notwithstanding the provisions of this section, members may vote
  151  in person at member meetings or by secret ballot, including
  152  absentee ballots, as defined by the division.
  153         3. A proxy is effective only for the specific meeting for
  154  which originally given and any lawfully adjourned meetings
  155  thereof. In no event shall any proxy be valid for a period
  156  longer than 90 days after the date of the first meeting for
  157  which it was given. Every proxy shall be revocable at any time
  158  at the pleasure of the member executing it.
  159         4. A member of the board of directors or a committee may
  160  submit in writing his or her agreement or disagreement with any
  161  action taken at a meeting that the member did not attend. This
  162  agreement or disagreement may not be used as a vote for or
  163  against the action taken and may not be used for the purposes of
  164  creating a quorum.
  165         (c) Board of directors’ and committee meetings.—
  166         1. Meetings of the board of directors and meetings of its
  167  committees at which a quorum is present shall be open to all
  168  members. Notwithstanding any other provision of law, the
  169  requirement that board meetings and committee meetings be open
  170  to the members does not apply to board or committee meetings
  171  held for the purpose of discussing personnel matters or meetings
  172  between the board or a committee and the association’s attorney,
  173  with respect to potential or pending litigation, where the
  174  meeting is held for the purpose of seeking or rendering legal
  175  advice, and where the contents of the discussion would otherwise
  176  be governed by the attorney-client privilege. Notice of meetings
  177  shall be posted in a conspicuous place upon the park property at
  178  least 48 hours in advance, except in an emergency. Notice of any
  179  meeting in which assessments against members are to be
  180  considered for any reason shall specifically contain a statement
  181  that assessments will be considered and the nature of such
  182  assessments.
  183         2. A board or committee member’s participation in a meeting
  184  via telephone, real-time videoconferencing, or similar real-time
  185  telephonic, electronic, or video communication counts toward a
  186  quorum, and such member may vote as if physically present. A
  187  speaker shall be used so that the conversation of those board or
  188  committee members attending by telephone may be heard by the
  189  board or committee members attending in person, as well as by
  190  members present at a meeting.
  191         3. Members of the board of directors may use e-mail as a
  192  means of communication but may not cast a vote on an association
  193  matter via e-mail.
  194         4. The right to attend meetings of the board of directors
  195  and its committees includes the right to speak at such meetings
  196  with reference to all designated agenda items. The association
  197  may adopt reasonable written rules governing the frequency,
  198  duration, and manner of members’ statements. Any item not
  199  included on the notice may be taken up on an emergency basis by
  200  at least a majority plus one of the members of the board. Such
  201  emergency action shall be noticed and ratified at the next
  202  regular meeting of the board. Any member may tape record or
  203  videotape meetings of the board of directors and its committees,
  204  except meetings between the board of directors or its appointed
  205  homeowners’ committee and the park owner. The division shall
  206  adopt reasonable rules governing the tape recording and
  207  videotaping of the meeting.
  208         5. Except as provided in paragraph (i), a vacancy occurring
  209  on the board of directors may be filled by the affirmative vote
  210  of the majority of the remaining directors, even though the
  211  remaining directors constitute less than a quorum; by the sole
  212  remaining director; if the vacancy is not so filled or if no
  213  director remains, by the members; or, on the application of any
  214  person, by the circuit court of the county in which the
  215  registered office of the corporation is located.
  216         6. The term of a director elected or appointed to fill a
  217  vacancy expires at the next annual meeting at which directors
  218  are elected. A directorship to be filled by reason of an
  219  increase in the number of directors may be filled by the board
  220  of directors, but only for the term of office continuing until
  221  the next election of directors by the members.
  222         7. A vacancy that will occur at a specific later date, by
  223  reason of a resignation effective at a later date, may be filled
  224  before the vacancy occurs. However, the new director may not
  225  take office until the vacancy occurs.
  226         8.a. The officers and directors of the association have a
  227  fiduciary relationship to the members.
  228         b. A director and committee member shall discharge his or
  229  her duties in good faith, with the care an ordinarily prudent
  230  person in a like position would exercise under similar
  231  circumstances, and in a manner he or she reasonably believes to
  232  be in the best interests of the corporation.
  233         9. In discharging his or her duties, a director may rely on
  234  information, opinions, reports, or statements, including
  235  financial statements and other financial data, if prepared or
  236  presented by:
  237         a. One or more officers or employees of the corporation who
  238  the director reasonably believes to be reliable and competent in
  239  the matters presented;
  240         b. Legal counsel, public accountants, or other persons as
  241  to matters the director reasonably believes are within the
  242  persons’ professional or expert competence; or
  243         c. A committee of the board of directors of which he or she
  244  is not a member if the director reasonably believes the
  245  committee merits confidence.
  246         10. A director is not acting in good faith if he or she has
  247  knowledge concerning the matter in question that makes reliance
  248  otherwise permitted by subparagraph 9. unwarranted.
  249         11. A director is not liable for any action taken as a
  250  director, or any failure to take any action, if he or she
  251  performed the duties of his or her office in compliance with
  252  this section.
  253         Section 6. Section 723.0781, Florida Statutes, is amended
  254  to read:
  255         723.0781 Board member training programs.—
  256         (1) Within 90 days after being elected or appointed to the
  257  board, a newly elected or appointed director shall certify by an
  258  affidavit in writing to the secretary of the association that he
  259  or she has read the association’s current articles of
  260  incorporation, bylaws, and the mobile home park’s prospectus,
  261  rental agreement, rules, regulations, and written policies; that
  262  he or she will work to uphold such documents and policies to the
  263  best of his or her ability; and that he or she will faithfully
  264  discharge his or her fiduciary responsibility to the
  265  association’s members.
  266         (2) In lieu of this written certification, within 90 days
  267  after being elected or appointed to the board, the newly elected
  268  or appointed director may submit a certificate of having
  269  satisfactorily completed the educational curriculum approved by
  270  the division within 1 year before or 90 days after the date of
  271  election or appointment. The educational certificate is valid
  272  and does not have to be resubmitted as long as the director
  273  serves on the board without interruption.
  274         (3) A director who fails to timely file the written
  275  certification or educational certificate is suspended from
  276  service on the board until he or she complies with this section.
  277  The board may temporarily fill the vacancy during the period of
  278  suspension.
  279         (4) The secretary of the association shall retain a
  280  director’s written certification or educational certificate for
  281  inspection by the members for 5 years after the director’s
  282  election or the duration of the director’s uninterrupted tenure,
  283  whichever is longer. Failure to have such written certification
  284  or educational certificate on file does not affect the validity
  285  of any board action.
  286         (5) This section becomes effective on October 1, 2016. Any
  287  member of the board of directors of a homeowners’ association
  288  not in compliance with the requirements of this section may not
  289  be considered in violation of this section until after October
  290  1, 2017.
  291         Section 7. This act shall take effect July 1, 2016.
  292  
  293  ================= T I T L E  A M E N D M E N T ================
  294  And the title is amended as follows:
  295         Delete everything before the enacting clause
  296  and insert:
  297                        A bill to be entitled                      
  298         An act relating to mobile homes; amending s. 723.006,
  299         F.S.; revising certain notice requirements for written
  300         complaints; requiring the Division of Florida
  301         Condominiums, Timeshares, and Mobile Homes to adopt
  302         rules to implement board member training requirements;
  303         providing notice and requirements of such rules;
  304         amending s. 723.031, F.S.; authorizing a mobile home
  305         park owner to pass on non-ad valorem assessments to a
  306         tenant under certain circumstances; providing that a
  307         mobile home park owner is deemed to have disclosed the
  308         passing on of certain taxes and assessments under
  309         certain circumstances; requiring the non-ad valorem
  310         assessments to be a part of the lot rental amount;
  311         requiring that a renewed rental agreement remain under
  312         the same terms unless certain notice is provided;
  313         amending s. 723.059, F.S.; authorizing a mobile home
  314         purchaser to cancel or rescind the contract to
  315         purchase under certain circumstances; amending s.
  316         723.075, F.S.; revising the rights that mobile home
  317         owners exercise if they form an association;
  318         authorizing mobile home owners to become members upon
  319         incorporation of the association; defining the terms
  320         “member” and “shareholder”; deleting provisions
  321         relating to memberships of successors to home owners;
  322         amending s. 723.078, F.S.; specifying voting
  323         requirements for homeowners’ associations; specifying
  324         the requirements for a majority of votes; authorizing
  325         members to vote by secret ballot and absentee ballot;
  326         prohibiting the tape recording or videotaping of
  327         meetings between the board of directors or its
  328         committees and the park owner; amending s. 723.0781,
  329         F.S.; providing a date by which certain provisions are
  330         effective; providing that board members may not be
  331         considered in violation of such provisions until after
  332         a specified date; providing an effective date.