Florida Senate - 2017 SB 1046
By Senator Passidomo
28-00635C-17 20171046__
1 A bill to be entitled
2 An act relating to covenants and restrictions;
3 amending ss. 125.022 and 166.033, F.S.; deleting
4 provisions specifying that a county or municipality is
5 not prohibited from providing information to an
6 applicant regarding other state or federal permits
7 that may apply under certain circumstances; specifying
8 that the imposition or acceptance of certain
9 restrictions or covenants does not preclude a county
10 or municipality from exercising its police power, in
11 its sole discretion, to later amend, release, or
12 terminate such restrictions or covenants; prohibiting
13 a county or municipality from delegating its police
14 power to a third party by restriction, covenant, or
15 otherwise; declaring any such purported delegation
16 void; providing for retroactive applicability;
17 creating s. 712.001, F.S.; providing a short title;
18 amending s. 712.01, F.S.; defining and redefining
19 terms; amending s. 712.04, F.S.; providing that a
20 marketable title is free and clear of all covenants or
21 restrictions, the existence of which depends upon any
22 act, title transaction, event, zoning requirement,
23 building or development permit, or omission that
24 occurred before the effective date of the root of
25 title; providing for construction; providing
26 applicability; amending s. 712.05, F.S.; revising the
27 notice filing requirements for a person claiming an
28 interest in land and other rights; authorizing a
29 property owners’ association to preserve and protect
30 certain covenants or restrictions from extinguishment,
31 subject to specified requirements; providing that a
32 failure in indexing does not affect the validity of
33 the notice; extending the length of time certain
34 covenants or restrictions are preserved; deleting a
35 provision requiring a two-thirds vote by members of an
36 incorporated homeowners’ association to file certain
37 notices; conforming provisions to changes made by the
38 act; amending s. 712.06, F.S.; exempting a specified
39 summary notice from certain notice content
40 requirements; revising the contents required to be
41 specified by certain notices; conforming provisions to
42 changes made by the act; amending s. 712.11, F.S.;
43 conforming provisions to changes made by the act;
44 creating s. 712.12, F.S.; defining terms; authorizing
45 the parcel owners of a community not subject to a
46 homeowners’ association to use specified procedures to
47 revive certain covenants or restrictions, subject to
48 certain exceptions and requirements; authorizing a
49 parcel owner to commence an action by a specified date
50 under certain circumstances for a judicial
51 determination that the covenants or restrictions did
52 not govern that parcel as of a specified date and that
53 any revitalization of such covenants or restrictions
54 as to that parcel would unconstitutionally deprive the
55 parcel owner of rights or property; providing
56 applicability; amending s. 720.303, F.S.; requiring a
57 board to take up certain provisions relating to notice
58 filings at the first board meeting; creating s.
59 720.3032, F.S.; providing recording requirements for
60 an association; providing a document form for
61 recording by an association to preserve certain
62 covenants or restrictions; providing that failure to
63 file one or more notices does not affect the validity
64 or enforceability of a covenant or restriction or
65 alter the time before extinguishment under certain
66 circumstances; requiring a copy of the filed notice to
67 be sent to all members; requiring the original signed
68 notice to be recorded with the clerk of the circuit
69 court or other recorder; amending ss. 702.09 and
70 702.10, F.S.; conforming provisions to changes made by
71 the act; amending s. 712.095, F.S.; conforming a
72 cross-reference; amending ss. 720.403, 720.404,
73 720.405, and 720.407, F.S.; conforming provisions to
74 changes made by the act; providing an effective date.
75
76 Be It Enacted by the Legislature of the State of Florida:
77
78 Section 1. Subsection (6) of section 125.022, Florida
79 Statutes, is amended to read:
80 125.022 Development permits.—
81 (6) The imposition or acceptance of a recorded or
82 unrecorded restriction or covenant in connection with the
83 approval or issuance of a development permit does not preclude
84 the county from exercising its police power, in its sole
85 discretion, to later amend, release, or terminate the
86 restriction or covenant. A county may not delegate its police
87 power to a third party by restriction, covenant, or otherwise,
88 and any such purported delegation is hereby declared to be void
89 This section does not prohibit a county from providing
90 information to an applicant regarding what other state or
91 federal permits may apply.
92 Section 2. Subsection (6) of section 166.033, Florida
93 Statutes, is amended to read:
94 166.033 Development permits.—
95 (6) The imposition or acceptance of a recorded or
96 unrecorded restriction or covenant in connection with the
97 approval or issuance of a development permit does not preclude a
98 municipality from exercising its police power, in its sole
99 discretion, to later amend, release, or terminate the
100 restriction or covenant. A municipality may not delegate its
101 police power to a third party by restriction, covenant, or
102 otherwise, and any such purported delegation is hereby declared
103 to be void This section does not prohibit a municipality from
104 providing information to an applicant regarding what other state
105 or federal permits may apply.
106 Section 3. The amendments by this act to ss. 125.022 and
107 166.033, Florida Statutes, which relate to development permits,
108 are remedial in nature and apply retroactively.
109 Section 4. Section 712.001, Florida Statutes, is created to
110 read:
111 712.001 Short title.—This chapter may be cited as the
112 “Marketable Record Title Act.”
113 Section 5. Section 712.01, Florida Statutes, is reordered
114 and amended to read:
115 712.01 Definitions.—As used in this chapter, the term law:
116 (1) “Community covenant or restriction” means any agreement
117 or limitation contained in a document recorded in the public
118 records of the county in which a parcel is located which:
119 (a) Subjects the parcel to any use restriction that may be
120 enforced by a property owners’ association; or
121 (b) Authorizes a property owners’ association to impose a
122 charge or assessment against the parcel or the parcel owner.
123 (4)(1) The term “Person” includes the as used herein
124 denotes singular or plural, natural or corporate, private or
125 governmental, including the state and any political subdivision
126 or agency thereof as the context for the use thereof requires or
127 denotes and including any property owners’ homeowners’
128 association.
129 (6)(2) “Root of title” means any title transaction
130 purporting to create or transfer the estate claimed by any
131 person and which is the last title transaction to have been
132 recorded at least 30 years before prior to the time when
133 marketability is being determined. The effective date of the
134 root of title is the date on which it was recorded.
135 (7)(3) “Title transaction” means any recorded instrument or
136 court proceeding that which affects title to any estate or
137 interest in land and that which describes the land sufficiently
138 to identify its location and boundaries.
139 (5)(4) “Property owners’ association” The term “homeowners’
140 association” means a homeowners’ association as defined in s.
141 720.301, a corporation or other entity responsible for the
142 operation of property in which the voting membership is made up
143 of the owners of the property or their agents, or a combination
144 thereof, and in which membership is a mandatory condition of
145 property ownership, or an association of parcel owners which is
146 authorized to enforce a community covenant or restriction use
147 restrictions that is are imposed on the parcels.
148 (3)(5) The term “Parcel” means real property that which is
149 used for residential purposes and that is subject to exclusive
150 ownership and which is subject to any covenant or restriction of
151 a property owners’ homeowners’ association.
152 (2)(6) The term “Covenant or restriction” means any
153 agreement or limitation contained in a document recorded in the
154 public records of the county in which a parcel is located which
155 subjects the parcel to any use or other restriction or
156 obligation which may be enforced by a homeowners’ association or
157 which authorizes a homeowners’ association to impose a charge or
158 assessment against the parcel or the owner of the parcel or
159 which may be enforced by the Florida Department of Environmental
160 Protection pursuant to chapter 376 or chapter 403.
161 Section 6. Section 712.04, Florida Statutes, is amended to
162 read:
163 712.04 Interests extinguished by marketable record title.—
164 (1) Subject to s. 712.03, a marketable record title is free
165 and clear of all estates, interests, claims, covenants,
166 restrictions, or charges, the existence of which depends upon
167 any act, title transaction, event, zoning requirement, building
168 or development permit, or omission that occurred before the
169 effective date of the root of title. Except as provided in s.
170 712.03, all such estates, interests, claims, covenants,
171 restrictions, or charges, however denominated, whether they are
172 or appear to be held or asserted by a person sui juris or under
173 a disability, whether such person is within or without the
174 state, natural or corporate, or private or governmental, are
175 declared to be null and void. However, this chapter does not
176 affect any right, title, or interest of the United States,
177 Florida, or any of its officers, boards, commissions, or other
178 agencies reserved in the patent or deed by which the United
179 States, Florida, or any of its agencies parted with title.
180 (2) This section may not be construed to alter or
181 invalidate a zoning ordinance, land development regulation,
182 building code, or other ordinance, rule, regulation, or law if
183 such ordinance, rule, regulation, or law operates independently
184 of matters recorded in the official records.
185 (3) This section is intended to clarify existing law, is
186 remedial in nature, and applies to all restrictions and
187 covenants whether imposed or accepted before, on, or after
188 October 1, 2017.
189 Section 7. Section 712.05, Florida Statutes, is amended to
190 read:
191 712.05 Effect of filing notice.—
192 (1) A person claiming an interest in land or other right
193 subject to extinguishment under this chapter a homeowners’
194 association desiring to preserve a covenant or restriction may
195 preserve and protect such interest or right the same from
196 extinguishment by the operation of this chapter act by filing
197 for record, at any time during the 30-year period immediately
198 following the effective date of the root of title, a written
199 notice in accordance with s. 712.06 this chapter.
200 (2) A property owners’ association may preserve and protect
201 a community covenant or restriction from extinguishment by the
202 operation of this chapter by filing for record, at any time
203 during the 30-year period immediately following the effective
204 date of the root of title:
205 (a) A written notice in accordance with s. 712.06; or
206 (b) A summary notice in substantial form and content as
207 required under s. 720.3032(2). Failure of a summary notice to be
208 indexed to the current owners of the affected property does not
209 affect the validity of the notice or vitiate the effect of the
210 filing of such notice.
211 (3) A Such notice under subsection (1) or subsection (2)
212 preserves an interest in land or other such claim of right
213 subject to extinguishment under this chapter, or a such covenant
214 or restriction or portion of such covenant or restriction, for
215 not less than up to 30 years after filing the notice unless the
216 notice is filed again as required in this chapter. A person’s
217 disability or lack of knowledge of any kind may not delay the
218 commencement of or suspend the running of the 30-year period.
219 Such notice may be filed for record by the claimant or by any
220 other person acting on behalf of a claimant who is:
221 (a) Under a disability;
222 (b) Unable to assert a claim on his or her behalf; or
223 (c) One of a class, but whose identity cannot be
224 established or is uncertain at the time of filing such notice of
225 claim for record.
226
227 Such notice may be filed by a homeowners’ association only if
228 the preservation of such covenant or restriction or portion of
229 such covenant or restriction is approved by at least two-thirds
230 of the members of the board of directors of an incorporated
231 homeowners’ association at a meeting for which a notice, stating
232 the meeting’s time and place and containing the statement of
233 marketable title action described in s. 712.06(1)(b), was mailed
234 or hand delivered to members of the homeowners’ association at
235 least 7 days before such meeting. The property owners’
236 homeowners’ association or clerk of the circuit court is not
237 required to provide additional notice pursuant to s. 712.06(3).
238 The preceding sentence is intended to clarify existing law.
239 (4)(2) It is shall not be necessary for the owner of the
240 marketable record title, as described in s. 712.02 herein
241 defined, to file a notice to protect his or her marketable
242 record title.
243 Section 8. Subsections (1) and (3) of section 712.06,
244 Florida Statutes, are amended to read:
245 712.06 Contents of notice; recording and indexing.—
246 (1) To be effective, the notice referred to in s. 712.05,
247 other than the summary notice referred to in s. 712.05(2)(b),
248 must shall contain:
249 (a) The name or description and mailing address of the
250 claimant or the property owners’ homeowners’ association
251 desiring to preserve any covenant or restriction and the name
252 and particular post office address of the person filing the
253 claim or the homeowners’ association.
254 (b) The name and mailing post office address of an owner,
255 or the name and mailing post office address of the person in
256 whose name the said property is assessed on the last completed
257 tax assessment roll of the county at the time of filing, who,
258 for purpose of such notice, shall be deemed to be an owner;
259 provided, however, if a property owners’ homeowners’ association
260 is filing the notice, then the requirements of this paragraph
261 may be satisfied by attaching to and recording with the notice
262 an affidavit executed by the appropriate member of the board of
263 directors of the property owners’ homeowners’ association
264 affirming that the board of directors of the property owners’
265 homeowners’ association caused a statement in substantially the
266 following form to be mailed or hand delivered to the members of
267 that property owners’ homeowners’ association:
268
269 STATEMENT OF MARKETABLE TITLE ACTION
270
271 The [name of property owners’ homeowners’ association] (the
272 “Association”) has taken action to ensure that the [name of
273 declaration, covenant, or restriction], recorded in Official
274 Records Book ...., Page ...., of the public records of ....
275 County, Florida, as may be amended from time to time, currently
276 burdening the property of each and every member of the
277 Association, retains its status as the source of marketable
278 title with regard to the affected real property the transfer of
279 a member’s residence. To this end, the Association shall cause
280 the notice required by chapter 712, Florida Statutes, to be
281 recorded in the public records of .... County, Florida. Copies
282 of this notice and its attachments are available through the
283 Association pursuant to the Association’s governing documents
284 regarding official records of the Association.
285
286 (c) A full and complete description of all land affected by
287 such notice, which description shall be set forth in particular
288 terms and not by general reference, but if said claim is founded
289 upon a recorded instrument or a covenant or a restriction, then
290 the description in such notice may be the same as that contained
291 in such recorded instrument or covenant or restriction, provided
292 the same shall be sufficient to identify the property.
293 (d) A statement of the claim showing the nature,
294 description, and extent of such claim or other right subject to
295 extinguishment under this chapter or, in the case of a covenant
296 or restriction, a copy of the covenant or restriction, except
297 that it is shall not be necessary to show the amount of any
298 claim for money or the terms of payment.
299 (e) If such claim or other right subject to extinguishment
300 under this chapter is based upon an instrument of record or a
301 recorded covenant or restriction, such instrument of record or
302 recorded covenant or restriction shall be deemed sufficiently
303 described to identify the same if the notice includes a
304 reference to the book and page in which the same is recorded.
305 (f) Such notice shall be acknowledged in the same manner as
306 deeds are acknowledged for record.
307 (3) The person providing the notice referred to in s.
308 712.05, other than a notice for preservation of a community
309 covenant or restriction, shall:
310 (a) Cause the clerk of the circuit court to mail by
311 registered or certified mail to the purported owner of said
312 property, as stated in such notice, a copy thereof and shall
313 enter on the original, before recording the same, a certificate
314 showing such mailing. For preparing the certificate, the
315 claimant shall pay to the clerk the service charge as prescribed
316 in s. 28.24(8) and the necessary costs of mailing, in addition
317 to the recording charges as prescribed in s. 28.24(12). If the
318 notice names purported owners having more than one address, the
319 person filing the same shall furnish a true copy for each of the
320 several addresses stated, and the clerk shall send one such copy
321 to the purported owners named at each respective address. Such
322 certificate shall be sufficient if the same reads substantially
323 as follows:
324
325 I hereby certify that I did on this ...., mail by
326 registered (or certified) mail a copy of the foregoing notice to
327 each of the following at the address stated:
328
329 ...(Clerk of the circuit court)...
330 of .... County, Florida,
331 By...(Deputy clerk)...
332
333 The clerk of the circuit court is not required to mail to the
334 purported owner of such property any such notice that pertains
335 solely to the preserving of any covenant or restriction or any
336 portion of a covenant or restriction; or
337 (b) Publish once a week, for 2 consecutive weeks, the
338 notice referred to in s. 712.05, with the official record book
339 and page number in which such notice was recorded, in a
340 newspaper as defined in chapter 50 in the county in which the
341 property is located.
342 Section 9. Section 712.11, Florida Statutes, is amended to
343 read:
344 712.11 Covenant revitalization.—A property owners’
345 homeowners’ association not otherwise subject to chapter 720 may
346 use the procedures set forth in ss. 720.403-720.407 to revive
347 covenants that have lapsed under the terms of this chapter.
348 Section 10. Section 712.12, Florida Statutes, is created to
349 read:
350 712.12 Covenant or restriction revitalization by parcel
351 owners not subject to a homeowners’ association.—
352 (1) As used in this section, the term:
353 (a) “Community” means the real property that is subject to
354 a covenant or restriction that is recorded in the county where
355 the property is located.
356 (b) “Covenant or restriction” means any agreement or
357 limitation imposed by a private party and not required by a
358 governmental agency as a condition of a development permit, as
359 defined in s. 163.3164, which is contained in a document
360 recorded in the public records of the county in which a parcel
361 is located and which subjects the parcel to any use restriction
362 that may be enforced by a parcel owner.
363 (c) “Parcel” means real property that is used for
364 residential purposes and that is subject to exclusive ownership
365 and any covenant or restriction that may be enforced by a parcel
366 owner.
367 (d) “Parcel owner” means the record owner of legal title to
368 a parcel.
369 (2) The parcel owners of a community not subject to a
370 homeowners’ association may use the procedures set forth in ss.
371 720.403-720.407 to revive covenants or restrictions that have
372 lapsed under the terms of this chapter, except:
373 (a) A reference to a homeowners’ association or articles of
374 incorporation or bylaws of a homeowners’ association under ss.
375 720.403-720.407 is not required to revive the covenants or
376 restrictions.
377 (b) The approval required under s. 720.405(6) must be in
378 writing, and not at a meeting.
379 (c) The requirements under s. 720.407(2) may be satisfied
380 by having the organizing committee execute the revived covenants
381 or restrictions in the name of the community.
382 (d) The indexing requirements under s. 720.407(3) may be
383 satisfied by indexing the community name in the covenants or
384 restrictions as the grantee and the parcel owners as the
385 grantors.
386 (3) With respect to any parcel that has ceased to be
387 governed by covenants or restrictions as of October 1, 2017, the
388 parcel owner may commence an action by October 1, 2018, for a
389 judicial determination that the covenants or restrictions did
390 not govern that parcel as of October 1, 2017, and that any
391 revitalization of such covenants or restrictions as to that
392 parcel would unconstitutionally deprive the parcel owner of
393 rights or property.
394 (4) Revived covenants or restrictions that are implemented
395 pursuant to this section do not apply to or affect the rights of
396 the parcel owner which are recognized by any court order or
397 judgment in any action commenced by October 1, 2018, and any
398 such rights so recognized may not be subsequently altered by
399 revived covenants or restrictions implemented under this section
400 without the consent of the affected parcel owner.
401 Section 11. Paragraph (e) is added to subsection (2) of
402 section 720.303, Florida Statutes, to read:
403 720.303 Association powers and duties; meetings of board;
404 official records; budgets; financial reporting; association
405 funds; recalls.—
406 (2) BOARD MEETINGS.—
407 (e) At the first board meeting, excluding the
408 organizational meeting, which follows the annual meeting of the
409 members, the board shall consider the desirability of filing
410 notices to preserve the covenants or restrictions affecting the
411 community or association from extinguishment under the
412 Marketable Record Title Act, chapter 712, and to authorize and
413 direct the appropriate officer to file notice in accordance with
414 s. 720.3032.
415 Section 12. Section 720.3032, Florida Statutes, is created
416 to read:
417 720.3032 Notice of association information; preservation
418 from Marketable Record Title Act.—
419 (1) Not less than once every 5 years, each association
420 shall record in the official records of each county in which the
421 community is located a notice specifying:
422 (a) The legal name of the association.
423 (b) The mailing and physical addresses of the association.
424 (c) The names of the affected subdivision plats and
425 condominiums or, if not applicable, the common name of the
426 community.
427 (d) The name, address, and telephone number for the current
428 community association management company or community
429 association manager, if any.
430 (e) Indication as to whether the association desires to
431 preserve the covenants or restrictions affecting the community
432 or association from extinguishment under the Marketable Record
433 Title Act, chapter 712.
434 (f) A listing by name and recording information of those
435 covenants or restrictions affecting the community which the
436 association desires to be preserved from extinguishment.
437 (g) The legal description of the community affected by the
438 covenants or restrictions, which may be satisfied by a reference
439 to a recorded plat.
440 (h) The signature of a duly authorized officer of the
441 association, acknowledged in the same manner as deeds are
442 acknowledged for record.
443 (2) Recording a document in substantially the following
444 form satisfies the notice obligation and constitutes a summary
445 notice as specified in s. 712.05(2)(b) sufficient to preserve
446 and protect the referenced covenants and restrictions from
447 extinguishment under the Marketable Record Title Act, chapter
448 712.
449
450 Notice of ...(name of association)... under s. 720.3032, Florida
451 Statutes, and notice to preserve and protect covenants and
452 restrictions from extinguishment under the Marketable Record
453 Title Act, chapter 712, Florida Statutes.
454
455 Instructions to recorder: Please index both the legal name
456 of the association and the names shown in item 3.
457 1. Legal name of association: ....
458 2. Mailing and physical addresses of association: .... ....
459 3. Names of the subdivision plats, or, if none, common name
460 of community: ....
461 4. Name, address, and telephone number for management
462 company, if any: ................
463 5. This notice does .... does not .... constitute a notice
464 to preserve and protect covenants or restrictions from
465 extinguishment under the Marketable Record Title Act.
466 6. The following covenants or restrictions affecting the
467 community which the association desires to be preserved from
468 extinguishment:
469 ...(Name of instrument)...
470 ...(Official Records Book where recorded & page)...
471 ...(List of instruments)...
472 ...(List of recording information)...
473 7. The legal description of the community affected by the
474 listed covenants or restrictions is: ...(Legal description,
475 which may be satisfied by reference to a recorded plat)...
476 This notice is filed on behalf of ...(Name of
477 association)... as of ...(Date)....
478 ...(Name of association)...
479
480 By: ....
481 ...(Name of individual officer)...
482 ...(Title of officer)...
483 ...(Notary acknowledgment)...
484
485 (3) The failure to file one or more notices does not affect
486 the validity or enforceability of any covenant or restriction
487 nor in any way alter the remaining time before extinguishment by
488 the Marketable Record Title Act, chapter 712.
489 (4) A copy of the notice, as filed, must be included as
490 part of the next notice of meeting or other mailing sent to all
491 members.
492 (5) The original signed notice must be recorded in the
493 official records of the clerk of the circuit court or other
494 recorder for the county.
495 Section 13. Section 702.09, Florida Statutes, is amended to
496 read:
497 702.09 Definitions.—For the purposes of ss. 702.07 and
498 702.08, the words “decree of foreclosure” shall include a
499 judgment or order rendered or passed in the foreclosure
500 proceedings in which the decree of foreclosure shall be
501 rescinded, vacated, and set aside; the word “mortgage” shall
502 mean any written instrument securing the payment of money or
503 advances and includes liens to secure payment of assessments
504 arising under chapters 718 and 719 and liens created pursuant to
505 the recorded covenants of a property owners’ homeowners’
506 association as defined in s. 712.01; the word “debt” shall
507 include promissory notes, bonds, and all other written
508 obligations given for the payment of money; the words
509 “foreclosure proceedings” shall embrace every action in the
510 circuit or county courts of this state wherein it is sought to
511 foreclose a mortgage and sell the property covered by the same;
512 and the word “property” shall mean and include both real and
513 personal property.
514 Section 14. Subsection (1) of section 702.10, Florida
515 Statutes, is amended to read:
516 702.10 Order to show cause; entry of final judgment of
517 foreclosure; payment during foreclosure.—
518 (1) A lienholder may request an order to show cause for the
519 entry of final judgment in a foreclosure action. For purposes of
520 this section, the term “lienholder” includes the plaintiff and a
521 defendant to the action who holds a lien encumbering the
522 property or a defendant who, by virtue of its status as a
523 condominium association, cooperative association, or property
524 owners’ homeowners’ association, may file a lien against the
525 real property subject to foreclosure. Upon filing, the court
526 shall immediately review the request and the court file in
527 chambers and without a hearing. If, upon examination of the
528 court file, the court finds that the complaint is verified,
529 complies with s. 702.015, and alleges a cause of action to
530 foreclose on real property, the court shall promptly issue an
531 order directed to the other parties named in the action to show
532 cause why a final judgment of foreclosure should not be entered.
533 (a) The order shall:
534 1. Set the date and time for a hearing to show cause. The
535 date for the hearing may not occur sooner than the later of 20
536 days after service of the order to show cause or 45 days after
537 service of the initial complaint. When service is obtained by
538 publication, the date for the hearing may not be set sooner than
539 30 days after the first publication.
540 2. Direct the time within which service of the order to
541 show cause and the complaint must be made upon the defendant.
542 3. State that the filing of defenses by a motion, a
543 responsive pleading, an affidavit, or other papers before the
544 hearing to show cause that raise a genuine issue of material
545 fact which would preclude the entry of summary judgment or
546 otherwise constitute a legal defense to foreclosure shall
547 constitute cause for the court not to enter final judgment.
548 4. State that a defendant has the right to file affidavits
549 or other papers before the time of the hearing to show cause and
550 may appear personally or by way of an attorney at the hearing.
551 5. State that, if a defendant files defenses by a motion, a
552 verified or sworn answer, affidavits, or other papers or appears
553 personally or by way of an attorney at the time of the hearing,
554 the hearing time will be used to hear and consider whether the
555 defendant’s motion, answer, affidavits, other papers, and other
556 evidence and argument as may be presented by the defendant or
557 the defendant’s attorney raise a genuine issue of material fact
558 which would preclude the entry of summary judgment or otherwise
559 constitute a legal defense to foreclosure. The order shall also
560 state that the court may enter an order of final judgment of
561 foreclosure at the hearing and order the clerk of the court to
562 conduct a foreclosure sale.
563 6. State that, if a defendant fails to appear at the
564 hearing to show cause or fails to file defenses by a motion or
565 by a verified or sworn answer or files an answer not contesting
566 the foreclosure, such defendant may be considered to have waived
567 the right to a hearing, and in such case, the court may enter a
568 default against such defendant and, if appropriate, a final
569 judgment of foreclosure ordering the clerk of the court to
570 conduct a foreclosure sale.
571 7. State that if the mortgage provides for reasonable
572 attorney fees and the requested attorney fees do not exceed 3
573 percent of the principal amount owed at the time of filing the
574 complaint, it is unnecessary for the court to hold a hearing or
575 adjudge the requested attorney fees to be reasonable.
576 8. Attach the form of the proposed final judgment of
577 foreclosure which the movant requests the court to enter at the
578 hearing on the order to show cause.
579 9. Require the party seeking final judgment to serve a copy
580 of the order to show cause on the other parties in the following
581 manner:
582 a. If a party has been served pursuant to chapter 48 with
583 the complaint and original process, or the other party is the
584 plaintiff in the action, service of the order to show cause on
585 that party may be made in the manner provided in the Florida
586 Rules of Civil Procedure.
587 b. If a defendant has not been served pursuant to chapter
588 48 with the complaint and original process, the order to show
589 cause, together with the summons and a copy of the complaint,
590 shall be served on the party in the same manner as provided by
591 law for original process.
592
593 Any final judgment of foreclosure entered under this subsection
594 is for in rem relief only. This subsection does not preclude the
595 entry of a deficiency judgment where otherwise allowed by law.
596 The Legislature intends that this alternative procedure may run
597 simultaneously with other court procedures.
598 (b) The right to be heard at the hearing to show cause is
599 waived if a defendant, after being served as provided by law
600 with an order to show cause, engages in conduct that clearly
601 shows that the defendant has relinquished the right to be heard
602 on that order. The defendant’s failure to file defenses by a
603 motion or by a sworn or verified answer, affidavits, or other
604 papers or to appear personally or by way of an attorney at the
605 hearing duly scheduled on the order to show cause presumptively
606 constitutes conduct that clearly shows that the defendant has
607 relinquished the right to be heard. If a defendant files
608 defenses by a motion, a verified answer, affidavits, or other
609 papers or presents evidence at or before the hearing which raise
610 a genuine issue of material fact which would preclude entry of
611 summary judgment or otherwise constitute a legal defense to
612 foreclosure, such action constitutes cause and precludes the
613 entry of a final judgment at the hearing to show cause.
614 (c) In a mortgage foreclosure proceeding, when a final
615 judgment of foreclosure has been entered against the mortgagor
616 and the note or mortgage provides for the award of reasonable
617 attorney fees, it is unnecessary for the court to hold a hearing
618 or adjudge the requested attorney fees to be reasonable if the
619 fees do not exceed 3 percent of the principal amount owed on the
620 note or mortgage at the time of filing, even if the note or
621 mortgage does not specify the percentage of the original amount
622 that would be paid as liquidated damages.
623 (d) If the court finds that all defendants have waived the
624 right to be heard as provided in paragraph (b), the court shall
625 promptly enter a final judgment of foreclosure without the need
626 for further hearing if the plaintiff has shown entitlement to a
627 final judgment and upon the filing with the court of the
628 original note, satisfaction of the conditions for establishment
629 of a lost note, or upon a showing to the court that the
630 obligation to be foreclosed is not evidenced by a promissory
631 note or other negotiable instrument. If the court finds that a
632 defendant has not waived the right to be heard on the order to
633 show cause, the court shall determine whether there is cause not
634 to enter a final judgment of foreclosure. If the court finds
635 that the defendant has not shown cause, the court shall promptly
636 enter a judgment of foreclosure. If the time allotted for the
637 hearing is insufficient, the court may announce at the hearing a
638 date and time for the continued hearing. Only the parties who
639 appear, individually or through an attorney, at the initial
640 hearing must be notified of the date and time of the continued
641 hearing.
642 Section 15. Section 712.095, Florida Statutes, is amended
643 to read:
644 712.095 Notice required by July 1, 1983.—Any person whose
645 interest in land is derived from an instrument or court
646 proceeding recorded subsequent to the root of title, which
647 instrument or proceeding did not contain a description of the
648 land as specified by s. 712.01(7) s. 712.01(3), and whose
649 interest had not been extinguished prior to July 1, 1981, shall
650 have until July 1, 1983, to file a notice in accordance with s.
651 712.06 to preserve the interest.
652 Section 16. Section 720.403, Florida Statutes, is amended
653 to read:
654 720.403 Preservation of residential communities; revival of
655 declaration of covenants.—
656 (1) Consistent with required and optional elements of local
657 comprehensive plans and other applicable provisions of the
658 Community Planning Act, property owners homeowners are
659 encouraged to preserve existing residential and other
660 communities, promote available and affordable housing, protect
661 structural and aesthetic elements of their residential
662 community, and, as applicable, maintain roads and streets,
663 easements, water and sewer systems, utilities, drainage
664 improvements, conservation and open areas, recreational
665 amenities, and other infrastructure and common areas that serve
666 and support the residential community by the revival of a
667 previous declaration of covenants and other governing documents
668 that may have ceased to govern some or all parcels in the
669 community.
670 (2) In order to preserve a residential community and the
671 associated infrastructure and common areas for the purposes
672 described in this section, the parcel owners in a community that
673 was previously subject to a declaration of covenants that has
674 ceased to govern one or more parcels in the community may revive
675 the declaration and the homeowners’ association for the
676 community upon approval by the parcel owners to be governed
677 thereby as provided in this act, and upon approval of the
678 declaration and the other governing documents for the
679 association by the Department of Economic Opportunity in a
680 manner consistent with this act.
681 (3) Part III of this chapter is intended to provide
682 mechanisms for the revitalization of covenants or restrictions
683 for all types of communities and property associations and is
684 not limited to residential communities.
685 Section 17. Section 720.404, Florida Statutes, is amended
686 to read:
687 720.404 Eligible residential communities; requirements for
688 revival of declaration.—Parcel owners in a community are
689 eligible to seek approval from the Department of Economic
690 Opportunity to revive a declaration of covenants under this act
691 if all of the following requirements are met:
692 (1) All parcels to be governed by the revived declaration
693 must have been once governed by a previous declaration that has
694 ceased to govern some or all of the parcels in the community;
695 (2) The revived declaration must be approved in the manner
696 provided in s. 720.405(6); and
697 (3) The revived declaration may not contain covenants that
698 are more restrictive on the parcel owners than the covenants
699 contained in the previous declaration, except that the
700 declaration may:
701 (a) Have an effective term of longer duration than the term
702 of the previous declaration;
703 (b) Omit restrictions contained in the previous
704 declaration;
705 (c) Govern fewer than all of the parcels governed by the
706 previous declaration;
707 (d) Provide for amendments to the declaration and other
708 governing documents; and
709 (e) Contain provisions required by this chapter for new
710 declarations that were not contained in the previous
711 declaration.
712 Section 18. Subsections (1), (3), (5), and (6) of section
713 720.405, Florida Statutes, are amended to read:
714 720.405 Organizing committee; parcel owner approval.—
715 (1) The proposal to revive a declaration of covenants and
716 an a homeowners’ association for a community under the terms of
717 this act shall be initiated by an organizing committee
718 consisting of not less than three parcel owners located in the
719 community that is proposed to be governed by the revived
720 declaration. The name, address, and telephone number of each
721 member of the organizing committee must be included in any
722 notice or other document provided by the committee to parcel
723 owners to be affected by the proposed revived declaration.
724 (3) The organizing committee shall prepare the full text of
725 the proposed articles of incorporation and bylaws of the revived
726 homeowners’ association to be submitted to the parcel owners for
727 approval, unless the association is then an existing
728 corporation, in which case the organizing committee shall
729 prepare the existing articles of incorporation and bylaws to be
730 submitted to the parcel owners.
731 (5) A copy of the complete text of the proposed revised
732 declaration of covenants, the proposed new or existing articles
733 of incorporation and bylaws of the homeowners’ association, and
734 a graphic depiction of the property to be governed by the
735 revived declaration shall be presented to all of the affected
736 parcel owners by mail or hand delivery not less than 14 days
737 before the time that the consent of the affected parcel owners
738 to the proposed governing documents is sought by the organizing
739 committee.
740 (6) A majority of the affected parcel owners must agree in
741 writing to the revived declaration of covenants and governing
742 documents of the homeowners’ association or approve the revived
743 declaration and governing documents by a vote at a meeting of
744 the affected parcel owners noticed and conducted in the manner
745 prescribed by s. 720.306. Proof of notice of the meeting to all
746 affected owners of the meeting and the minutes of the meeting
747 recording the votes of the property owners shall be certified by
748 a court reporter or an attorney licensed to practice in the
749 state.
750 Section 19. Subsection (3) of section 720.407, Florida
751 Statutes, is amended to read:
752 720.407 Recording; notice of recording; applicability and
753 effective date.—
754 (3) The recorded documents shall include the full text of
755 the approved declaration of covenants, the articles of
756 incorporation and bylaws of the homeowners’ association, the
757 letter of approval by the department, and the legal description
758 of each affected parcel of property. For purposes of chapter
759 712, the association is deemed to be and shall be indexed as the
760 grantee in a title transaction and the parcel owners named in
761 the revived declaration are deemed to be and shall be indexed as
762 the grantors in the title transaction.
763 Section 20. This act shall take effect October 1, 2017.