Senate Bill 1054e2
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1 A bill to be entitled
2 An act relating to rulemaking authority of the
3 Department of Business and Professional
4 Regulation (RAB); amending s. 718.104, F.S.;
5 requiring notification; amending s. 718.112,
6 F.S.; providing requirements relating to
7 association meetings; amending s. 718.117,
8 F.S.; requiring notification; amending s.
9 718.301, F.S.; providing rulemaking authority
10 for requirements relating to the transition of
11 a condominium; amending s. 718.403, F.S.;
12 requiring filing of recording information;
13 amending s. 718.502, F.S.; providing certain
14 requirements prior to the closure on any
15 contract for sale or lease of over 5 years;
16 providing rulemaking authority for requirements
17 relating to filing and review programs and
18 timetables; amending s. 718.503, F.S.;
19 providing requirements relating to the closure
20 of a transaction for the purchase of a
21 condominium unit; creating s. 718.621, F.S.;
22 providing rulemaking authority for requirements
23 relating to condominium conversion; providing
24 an effective date.
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26 Be It Enacted by the Legislature of the State of Florida:
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28 Section 1. Subsection (2) of section 718.104, Florida
29 Statutes, is amended to read:
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1 718.104 Creation of condominiums; contents of
2 declaration.--Every condominium created in this state shall be
3 created pursuant to this chapter.
4 (2) A condominium is created by recording a
5 declaration in the public records of the county where the land
6 is located, executed and acknowledged with the requirements
7 for a deed. All persons who have record title to the interest
8 in the land being submitted to condominium ownership, or their
9 lawfully authorized agents, must join in the execution of the
10 declaration. Upon the recording of the declaration, or an
11 amendment adding a phase to the condominium under s.
12 718.403(6), all units described in the declaration or phase
13 amendment as being located in or on the land then being
14 submitted to condominium ownership shall come into existence,
15 regardless of the state of completion of planned improvements
16 in which the units may be located. Upon recording the
17 declaration of condominium pursuant to this section, the
18 developer shall file the recording information with the
19 division within 30 business days on a form prescribed by the
20 division.
21 Section 2. Paragraphs (b) and (c) of subsection (2) of
22 section 718.112, Florida Statutes, are amended to read:
23 718.112 Bylaws.--
24 (2) REQUIRED PROVISIONS.--The bylaws shall provide for
25 the following and, if they do not do so, shall be deemed to
26 include the following:
27 (b) Quorum; voting requirements; proxies.--
28 1. Unless a lower number is provided in the bylaws,
29 the percentage of voting interests required to constitute a
30 quorum at a meeting of the members shall be a majority of the
31 voting interests. Unless otherwise provided in this chapter
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1 or in the declaration, articles of incorporation, or bylaws,
2 and except as provided in subparagraph (d)3., decisions shall
3 be made by owners of a majority of the voting interests
4 represented at a meeting at which a quorum is present.
5 2. Except as specifically otherwise provided herein,
6 after January 1, 1992, unit owners may not vote by general
7 proxy, but may vote by limited proxies substantially
8 conforming to a limited proxy form adopted by the division.
9 Limited proxies and general proxies may be used to establish a
10 quorum. Limited proxies shall be used for votes taken to
11 waive or reduce reserves in accordance with subparagraph
12 (f)2.; for votes taken to waive financial statement
13 requirements as provided by s. 718.111(14); for votes taken to
14 amend the declaration pursuant to s. 718.110; for votes taken
15 to amend the articles of incorporation or bylaws pursuant to
16 this section; and for any other matter for which this chapter
17 requires or permits a vote of the unit owners. Except as
18 provided in paragraph (d), after January 1, 1992, no proxy,
19 limited or general, shall be used in the election of board
20 members. General proxies may be used for other matters for
21 which limited proxies are not required, and may also be used
22 in voting for nonsubstantive changes to items for which a
23 limited proxy is required and given. Notwithstanding the
24 provisions of this subparagraph, unit owners may vote in
25 person at unit owner meetings. Nothing contained herein shall
26 limit the use of general proxies or require the use of limited
27 proxies for any agenda item or election at any meeting of a
28 timeshare condominium association.
29 3. Any proxy given shall be effective only for the
30 specific meeting for which originally given and any lawfully
31 adjourned meetings thereof. In no event shall any proxy be
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1 valid for a period longer than 90 days after the date of the
2 first meeting for which it was given. Every proxy is
3 revocable at any time at the pleasure of the unit owner
4 executing it.
5 4. A member of the board of administration or a
6 committee may submit in writing his or her agreement or
7 disagreement with any action taken at a meeting that the
8 member did not attend. This agreement or disagreement may not
9 be used as a vote for or against the action taken and may not
10 be used for the purposes of creating a quorum.
11 5. When any of the board or committee members meet by
12 telephone conference, those board or committee members
13 attending by telephone conference may be counted toward
14 obtaining a quorum and may vote by telephone. A telephone
15 speaker must be used so that the conversation of those board
16 or committee members attending by telephone may be heard by
17 the board or committee members attending in person as well as
18 by any unit owners present at a meeting.
19 (c) Board of administration meetings.--Meetings of the
20 board of administration at which a quorum of the members is
21 present shall be open to all unit owners. Any unit owner may
22 tape record or videotape meetings of the board of
23 administration. The right to attend such meetings includes
24 the right to speak at such meetings with reference to all
25 designated agenda items. The division shall adopt reasonable
26 rules governing the tape recording and videotaping of the
27 meeting. The association may adopt written reasonable rules
28 governing the frequency, duration, and manner of unit owner
29 statements. Adequate notice of all meetings, which notice
30 shall specifically incorporate an identification of agenda
31 items, shall be posted conspicuously on the condominium
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1 property at least 48 continuous hours preceding the meeting
2 except in an emergency. Any item not included on the notice
3 may be taken up on an emergency basis by at least a majority
4 plus one of the members of the board. Such emergency action
5 shall be noticed and ratified at the next regular meeting of
6 the board. However, written notice of any meeting at which
7 nonemergency special assessments, or at which amendment to
8 rules regarding unit use, will be considered shall be mailed
9 or delivered to the unit owners and posted conspicuously on
10 the condominium property not less than 14 days prior to the
11 meeting. Evidence of compliance with this 14-day notice shall
12 be made by an affidavit executed by the person providing the
13 notice and filed among the official records of the
14 association. Upon notice to the unit owners, the board shall
15 by duly adopted rule designate a specific location on the
16 condominium property or association property upon which all
17 notices of board meetings shall be posted. If there is no
18 condominium property or association property upon which
19 notices can be posted, notices of board meetings shall be
20 mailed or delivered at least 14 days before the meeting to the
21 owner of each unit. Notice of any meeting in which regular
22 assessments against unit owners are to be considered for any
23 reason shall specifically contain a statement that assessments
24 will be considered and the nature of any such assessments.
25 Meetings of a committee to take final action on behalf of the
26 board or make recommendations to the board regarding the
27 association budget are subject to the provisions of this
28 paragraph. Meetings of a committee that does not take final
29 action on behalf of the board or make recommendations to the
30 board regarding the association budget are subject to the
31 provisions of this section, unless those meetings are exempted
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1 from this section by the bylaws of the association.
2 Notwithstanding any other law, the requirement that board
3 meetings and committee meetings be open to the unit owners is
4 inapplicable to meetings between the board or a committee and
5 the association's attorney, with respect to proposed or
6 pending litigation, when the meeting is held for the purpose
7 of seeking or rendering legal advice.
8 Section 3. Subsection (1) of section 718.117, Florida
9 Statutes, is amended to read:
10 718.117 Termination.--
11 (1) Unless otherwise provided in the declaration, the
12 condominium property may be removed from the provisions of
13 this chapter only by consent of all of the unit owners,
14 evidenced by a recorded instrument to that effect, and upon
15 the written consent by all of the holders of recorded liens
16 affecting any of the condominium parcels. When the board of
17 directors intends to terminate or merge the condominium, or
18 dissolve or merge the association, the boards shall so notify
19 the division before taking any action to terminate or merge
20 the condominium or the association. Upon recordation of the
21 instrument evidencing consent of all of the unit owners to
22 terminate the condominium, the association within 30 business
23 days shall notify the division within 30 working days of the
24 termination and the date the document was recorded, the county
25 where the document was recorded, and the book and page number
26 of the public records where the document was recorded, and
27 shall provide the division a copy of the recorded termination
28 notice certified by the clerk.
29 Section 4. Subsection (6) is added to section 718.301,
30 Florida Statutes, to read:
31 718.301 Transfer of association control.--
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1 (6) The division has authority to adopt rules pursuant
2 to the Administrative Procedure Act to ensure the efficient
3 and effective transition from developer control of a
4 condominium to the establishment of a unit owner-controlled
5 association.
6 Section 5. Subsection (8) is added to section 718.403,
7 Florida Statutes, to read:
8 718.403 Phase condominiums.--
9 (8) Upon recording the declaration of condominium or
10 amendments adding phases pursuant to this section, the
11 developer shall file the recording information with the
12 division within 30 working days on a form prescribed by the
13 division.
14 Section 6. Subsection (1) of section 718.502, Florida
15 Statutes, is amended to read:
16 718.502 Filing prior to sale or lease.--
17 (1)(a) A developer of a residential condominium or
18 mixed-use condominium shall file with the division one copy of
19 each of the documents and items required to be furnished to a
20 buyer or lessee by ss. 718.503 and 718.504, if applicable.
21 Until the developer has so filed, a contract for sale of a
22 unit or lease of a unit for more than 5 years shall be
23 voidable by the purchaser or lessee prior to the closing of
24 his or her purchase or lease of a unit.
25 (b) A developer may not close on any contract for sale
26 or contract for a lease period of more than 5 years until the
27 developer prepares and files with the division documents
28 complying with the requirements of this chapter and the rules
29 adopted by the division and until the division notifies the
30 developer that the filing is proper and the developer prepares
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1 and delivers all documents required by section 718.503(1)(b)
2 to the prospective buyer.
3 (c) The division by rule may develop filing, review,
4 and examination requirements and relevant timetables to ensure
5 compliance with the notice and disclosure provisions of this
6 section.
7 Section 7. Subsection (1) of section 718.503, Florida
8 Statutes, is amended to read:
9 718.503 Developer disclosure prior to sale;
10 nondeveloper unit owner disclosure prior to sale;
11 voidability.--
12 (1) DEVELOPER DISCLOSURE.--
13 (a) Contents of contracts.--Any contract for the sale
14 of a residential unit or a lease thereof for an unexpired term
15 of more than 5 years shall:
16 1. Contain the following legend in conspicuous type:
17 THIS AGREEMENT IS VOIDABLE BY BUYER BY DELIVERING WRITTEN
18 NOTICE OF THE BUYER'S INTENTION TO CANCEL WITHIN 15 DAYS AFTER
19 THE DATE OF EXECUTION OF THIS AGREEMENT BY THE BUYER, AND
20 RECEIPT BY BUYER OF ALL OF THE ITEMS REQUIRED TO BE DELIVERED
21 TO HIM OR HER BY THE DEVELOPER UNDER SECTION 718.503, FLORIDA
22 STATUTES. THIS AGREEMENT IS ALSO VOIDABLE BY BUYER BY
23 DELIVERING WRITTEN NOTICE OF THE BUYER'S INTENTION TO CANCEL
24 WITHIN 15 DAYS AFTER THE DATE OF RECEIPT FROM THE DEVELOPER OF
25 ANY AMENDMENT WHICH MATERIALLY ALTERS OR MODIFIES THE OFFERING
26 IN A MANNER THAT IS ADVERSE TO THE BUYER. ANY PURPORTED
27 WAIVER OF THESE VOIDABILITY RIGHTS SHALL BE OF NO EFFECT.
28 BUYER MAY EXTEND THE TIME FOR CLOSING FOR A PERIOD OF NOT MORE
29 THAN 15 DAYS AFTER THE BUYER HAS RECEIVED ALL OF THE ITEMS
30 REQUIRED. BUYER'S RIGHT TO VOID THIS AGREEMENT SHALL
31 TERMINATE AT CLOSING.
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1 2. Contain the following caveat in conspicuous type on
2 the first page of the contract: ORAL REPRESENTATIONS CANNOT
3 BE RELIED UPON AS CORRECTLY STATING THE REPRESENTATIONS OF THE
4 DEVELOPER. FOR CORRECT REPRESENTATIONS, REFERENCE SHOULD BE
5 MADE TO THIS CONTRACT AND THE DOCUMENTS REQUIRED BY SECTION
6 718.503, FLORIDA STATUTES, TO BE FURNISHED BY A DEVELOPER TO A
7 BUYER OR LESSEE.
8 3. If the unit has been occupied by someone other than
9 the buyer, contain a statement that the unit has been
10 occupied.
11 4. If the contract is for the sale or transfer of a
12 unit subject to a lease, include as an exhibit a copy of the
13 executed lease and shall contain within the text in
14 conspicuous type: THE UNIT IS SUBJECT TO A LEASE (OR
15 SUBLEASE).
16 5. If the contract is for the lease of a unit for a
17 term of 5 years or more, include as an exhibit a copy of the
18 proposed lease.
19 6. If the contract is for the sale or lease of a unit
20 that is subject to a lien for rent payable under a lease of a
21 recreational facility or other commonly used facility, contain
22 within the text the following statement in conspicuous type:
23 THIS CONTRACT IS FOR THE TRANSFER OF A UNIT THAT IS SUBJECT TO
24 A LIEN FOR RENT PAYABLE UNDER A LEASE OF COMMONLY USED
25 FACILITIES. FAILURE TO PAY RENT MAY RESULT IN FORECLOSURE OF
26 THE LIEN.
27 7. State the name and address of the escrow agent
28 required by s. 718.202 and state that the purchaser may obtain
29 a receipt for his or her deposit from the escrow agent upon
30 request.
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1 8. If the contract is for the sale or transfer of a
2 unit in a condominium in which timeshare estates have been or
3 may be created, contain within the text in conspicuous type:
4 UNITS IN THIS CONDOMINIUM ARE SUBJECT TO TIMESHARE ESTATES.
5 The contract for the sale of a fee interest in a timeshare
6 estate shall also contain, in conspicuous type, the following:
7 FOR THE PURPOSE OF AD VALOREM TAXES OR SPECIAL ASSESSMENTS
8 LEVIED BY TAXING AUTHORITIES AGAINST A FEE INTEREST IN A
9 TIMESHARE ESTATE, THE MANAGING ENTITY IS GENERALLY CONSIDERED
10 THE TAXPAYER UNDER FLORIDA LAW. YOU HAVE THE RIGHT TO
11 CHALLENGE AN ASSESSMENT BY A TAXING AUTHORITY RELATING TO YOUR
12 TIMESHARE ESTATE PURSUANT TO THE PROVISIONS OF CHAPTER 194,
13 FLORIDA STATUTES.
14 (b) Copies of documents to be furnished to prospective
15 buyer or lessee.--Until such time as the developer has
16 furnished the documents listed below to a person who has
17 entered into a contract to purchase a residential unit or
18 lease it for more than 5 years, the contract may be voided by
19 that person, entitling the person to a refund of any deposit
20 together with interest thereon as provided in s. 718.202. The
21 contract may be terminated by written notice from the proposed
22 buyer or lessee delivered to the developer within 15 days
23 after the buyer or lessee receives all of the documents
24 required by this section. The developer may not close for 15
25 days following the execution of the agreement and delivery of
26 the documents to the buyer as evidenced by a signed receipt
27 for documents unless the buyer is informed in the 15-day
28 voidability period and agrees to close prior to the expiration
29 of the 15 days. The developer shall retain in his or her
30 records a separate agreement signed by the buyer as proof of
31 the buyer's agreement to close prior to the expiration of said
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1 voidability period. Said proof shall be retained for a period
2 of 5 years after the date of the closing of the transaction.
3 The documents to be delivered to the prospective buyer are the
4 prospectus or disclosure statement with all exhibits, if the
5 development is subject to the provisions of s. 718.504, or, if
6 not, then copies of the following which are applicable:
7 1. The question and answer sheet described in s.
8 718.504, and declaration of condominium, or the proposed
9 declaration if the declaration has not been recorded, which
10 shall include the certificate of a surveyor approximately
11 representing the locations required by s. 718.104.
12 2. The documents creating the association.
13 3. The bylaws.
14 4. The ground lease or other underlying lease of the
15 condominium.
16 5. The management contract, maintenance contract, and
17 other contracts for management of the association and
18 operation of the condominium and facilities used by the unit
19 owners having a service term in excess of 1 year, and any
20 management contracts that are renewable.
21 6. The estimated operating budget for the condominium
22 and a schedule of expenses for each type of unit, including
23 fees assessed pursuant to s. 718.113(1) for the maintenance of
24 limited common elements where such costs are shared only by
25 those entitled to use the limited common elements.
26 7. The lease of recreational and other facilities that
27 will be used only by unit owners of the subject condominium.
28 8. The lease of recreational and other common
29 facilities that will be used by unit owners in common with
30 unit owners of other condominiums.
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1 9. The form of unit lease if the offer is of a
2 leasehold.
3 10. Any declaration of servitude of properties serving
4 the condominium but not owned by unit owners or leased to them
5 or the association.
6 11. If the development is to be built in phases or if
7 the association is to manage more than one condominium, a
8 description of the plan of phase development or the
9 arrangements for the association to manage two or more
10 condominiums.
11 12. If the condominium is a conversion of existing
12 improvements, the statements and disclosure required by s.
13 718.616.
14 13. The form of agreement for sale or lease of units.
15 14. A copy of the floor plan of the unit and the plot
16 plan showing the location of the residential buildings and the
17 recreation and other common areas.
18 15. A copy of all covenants and restrictions which
19 will affect the use of the property and which are not
20 contained in the foregoing.
21 16. If the developer is required by state or local
22 authorities to obtain acceptance or approval of any dock or
23 marina facilities intended to serve the condominium, a copy of
24 any such acceptance or approval acquired by the time of filing
25 with the division under s. 718.502(1), or a statement that
26 such acceptance or approval has not been acquired or received.
27 17. Evidence demonstrating that the developer has an
28 ownership, leasehold, or contractual interest in the land upon
29 which the condominium is to be developed.
30 Section 8. Section 718.621, Florida Statutes, is
31 created to read:
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1 718.621 Rulemaking authority.--The division is
2 authorized to adopt rules pursuant to the Administrative
3 Procedure Act to administer and ensure compliance with
4 developers' obligations with respect to condominium
5 conversions concerning the filing and noticing of intended
6 conversion, rental agreement extensions, rights of first
7 refusal, and disclosure and post-purchase protections.
8 Section 9. This act shall take effect upon becoming a
9 law.
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