Senate Bill 0544

CODING: Words stricken are deletions; words underlined are additions.


    Florida Senate - 1998                                   SB 544

    By Senator Dyer





    14-498-98                                          See HB 3193

  1                      A bill to be entitled

  2         An act relating to homeowners' associations;

  3         amending s. 617.303, F.S.; prohibiting the

  4         commingling of certain funds; amending s.

  5         617.307, F.S.; revising language with respect

  6         to the transition of homeowners' association

  7         control in a community; providing a list of

  8         required documents which must be provided to

  9         the board by the developer; creating s.

10         617.3075, F.S.; providing for prohibited

11         clauses in homeowners' association documents;

12         amending s. 689.26, F.S.; revising language

13         with respect to disclosure to prospective

14         purchasers; providing for the cancellation of

15         certain contracts; providing for the inclusion

16         of information on certain amenities; providing

17         an effective date.

18

19  Be It Enacted by the Legislature of the State of Florida:

20

21         Section 1.  Subsection (8) of section 617.303, Florida

22  Statutes, is renumbered as subsection (9), and a new

23  subsection (8) is added to said section to read:

24         617.303  Association powers and duties; meetings of

25  board; official records; budgets; financial reporting.--

26         (8)  ASSOCIATION FUNDS; COMMINGLING.--

27         (a)  All association funds held by a developer shall be

28  maintained separately in the association's name. Reserve and

29  operating funds of the association shall not be commingled

30  prior to turnover except the association may jointly invest

31

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1998                                   SB 544
    14-498-98                                          See HB 3193




  1  reserve funds; however, such jointly invested funds must be

  2  accounted for separately.

  3         (b)  No developer in control of a homeowners'

  4  association shall commingle any association funds with his or

  5  her funds or with the funds of any other homeowners'

  6  association or community association.

  7         Section 2.  Subsection (1) of section 617.307, Florida

  8  Statutes, is amended, subsection (3) of said section is

  9  renumbered as subsection (4), and a new subsection (3) is

10  added to said section to read:

11         617.307  Transition of homeowners' association control

12  in a community.--With respect to homeowners' associations as

13  defined in s. 617.301:

14         (1)  Members other than the developer are entitled to

15  elect at least a majority of the members of the board of

16  directors of the homeowners' association when the earlier of

17  the following events occurs:

18         (a)  Three months after 90 percent of the parcels that

19  are platted, have a site plan approved, are approved for land

20  use, or are otherwise approved by the appropriate governmental

21  authority, prior to the first unit sold, in all phases of the

22  community that will ultimately be operated by the homeowners'

23  association have been conveyed to members; or

24         (b)  Such other percentage of the parcels has been

25  conveyed to members, or such other date or event has occurred,

26  as is set forth in the governing documents in order to comply

27  with the requirements of any governmentally chartered entity

28  with regard to the mortgage financing of parcels.

29

30  (c)  For purposes of this section, the term "members other

31  than the developer" shall not include builders, contractors,

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1998                                   SB 544
    14-498-98                                          See HB 3193




  1  or others who purchase a parcel for the purpose of

  2  constructing improvements thereon for resale.

  3         (3)  At the time the members are entitled to elect at

  4  least a majority of the board of directors of the homeowners'

  5  association, the developer shall, at the developer's expense,

  6  immediately deliver the following documents to the board:

  7         (a)  All deeds to common property owned by the

  8  association.

  9         (b)  The original of the association's declarations of

10  covenants and restrictions.

11         (c)  A certified copy of the articles of incorporation

12  of the association.

13         (d)  A copy of the bylaws.

14         (e)  The minute books, including all minutes.

15         (f)  The books and records of the association.

16         (g)  Policies, rules, and regulations, if any, which

17  have been adopted.

18         (h)  Resignations of directors who are required to

19  resign because the developer is required to relinquish control

20  of the association.

21         (i)  The financial records of the association from the

22  date of incorporation through the date of turnover.

23         (j)  All association funds and control thereof.

24         (k)  All tangible property of the association.

25         (l)  A copy of all contracts which may be in force with

26  the association as one of the parties.

27         (m)  A list of the names and addresses and telephone

28  numbers of all contractors, subcontractors, or others in the

29  employ of the association.

30         (n)  Any and all insurance policies.

31

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1998                                   SB 544
    14-498-98                                          See HB 3193




  1         (o)  Any permits issued to the association by

  2  governmental entities.

  3         (p)  Any and all warranties in effect.

  4         (q)  A roster of homeowners and their addresses and

  5  telephone numbers and section and lot numbers.

  6         (r)  Employment and service contracts in effect.

  7         (s)  All other contracts to which the association is a

  8  party.

  9         Section 3.  Section 617.3075, Florida Statutes, is

10  created to read:

11         617.3075  Prohibited clauses in homeowners' association

12  documents.--

13         (1)  It is hereby declared that the public policy of

14  this state prohibits the inclusion or enforcement of certain

15  types of clauses in homeowners' association documents,

16  including declaration of covenants, articles of incorporation,

17  bylaws, or any other document of the association which binds

18  members of the association, which either have the effect of or

19  provide that:

20         (a)  A developer has the right to veto any action taken

21  by the homeowners' association after the transition of

22  homeowners' association control in a community from the

23  developer to the nondeveloper members, as set forth in s.

24  617.307, has occurred.

25         (b)  A developer has the unilateral ability and right

26  to make changes to the homeowners' association documents after

27  the transition of homeowners' association control in a

28  community from the developer to the nondeveloper members, as

29  set forth in s. 617.307, has occurred.

30         (c)  A homeowners' association is prohibited or

31  restricted from filing a lawsuit against the developer, or the

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1998                                   SB 544
    14-498-98                                          See HB 3193




  1  homeowners' association is otherwise effectively prohibited or

  2  restricted from bringing a lawsuit against the developer.

  3         (d)  After the transition of homeowners' association

  4  control in a community from the developer to the nondeveloper

  5  members, as set forth in s. 617.307, has occurred, a developer

  6  is entitled to cast votes in an amount that exceeds one vote

  7  per lot.

  8

  9  Such clauses are hereby declared null and void as against the

10  public policy of this state.

11         (2)  The public policy described in subsection (1)

12  prohibits the inclusion or enforcement of such clauses created

13  on or after the effective date of this section.

14         Section 4.  Section 689.26, Florida Statutes, is

15  amended to read:

16         689.26  Prospective purchasers subject to association

17  membership requirement; disclosure required.--

18         (1)  A prospective parcel owner in a community must be

19  presented a disclosure summary before executing the contract

20  for sale.  The disclosure summary must be in a form

21  substantially similar to the following form:

22

23                        DISCLOSURE SUMMARY

24                                FOR

25                        (NAME OF COMMUNITY)

26

27         1.  AS A PURCHASER OF PROPERTY IN THIS COMMUNITY, YOU

28  WILL BE OBLIGATED TO BE A MEMBER OF A HOMEOWNERS' ASSOCIATION.

29         2.  THERE HAVE BEEN OR WILL BE RECORDED RESTRICTIVE

30  COVENANTS GOVERNING THE USE AND OCCUPANCY OF PROPERTIES IN

31  THIS COMMUNITY.

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1998                                   SB 544
    14-498-98                                          See HB 3193




  1         3.  YOU WILL BE OBLIGATED TO PAY ASSESSMENTS TO THE

  2  ASSOCIATION, WHICH ASSESSMENTS ARE SUBJECT TO PERIODIC CHANGE.

  3         4.  YOUR FAILURE TO PAY THESE ASSESSMENTS COULD RESULT

  4  IN A LIEN ON YOUR PROPERTY.

  5         5.  THERE (IS) (IS NOT) AN OBLIGATION TO PAY RENT OR

  6  LAND USE FEES FOR RECREATIONAL OR OTHER COMMONLY USED

  7  FACILITIES AS AN OBLIGATION OF MEMBERSHIP IN THE HOMEOWNERS'

  8  ASSOCIATION.  (If such obligation exists, then the amount of

  9  the current obligation shall be set forth.)

10         6.  THE RESTRICTIVE COVENANTS (CAN) (CANNOT) BE AMENDED

11  WITHOUT THE APPROVAL OF THE ASSOCIATION MEMBERSHIP.

12         7.  THE STATEMENTS CONTAINED IN THIS DISCLOSURE FORM

13  ARE ONLY SUMMARY IN NATURE, AND, AS A PROSPECTIVE PURCHASER,

14  YOU SHOULD REFER TO THE COVENANTS AND THE ASSOCIATION

15  GOVERNING DOCUMENTS.

16         8.  THESE DOCUMENTS ARE MATTERS OF PUBLIC RECORD AND

17  CAN BE OBTAINED FROM THE RECORD OFFICE IN THE COUNTY WHERE THE

18  PROPERTY IS LOCATED.

19  DATE:                                               PURCHASER:

20                                                      PURCHASER:

21

22  The disclosure must be supplied by the developer, or by the

23  parcel owner if the sale is by an owner that is not the

24  developer. In the event that the seller fails to comply with

25  this subsection, the buyer shall have the right to cancel the

26  proposed contract for sale and purchase of the parcel for up

27  to 7 days following execution of a sales contract, without

28  penalty or forfeiture of any deposit or good faith moneys

29  advanced.

30         (2)  The developer shall provide a specific written

31  description of all planned amenities to each prospective

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1998                                   SB 544
    14-498-98                                          See HB 3193




  1  purchaser prior to the execution of a written contract.

  2  Failure to comply with this subsection shall result in the

  3  buyer having the right to cancel the proposed contract for

  4  sale and purchase of the parcel for up to 7 days following

  5  execution of a sales contract, without penalty or forfeiture

  6  of any deposit or good faith moneys advanced.

  7         (3)(2)  This section does not apply to any association

  8  regulated under chapter 718, chapter 719, chapter 721, or

  9  chapter 723 or to a subdivider registered under chapter 498;

10  and also does not apply if disclosure regarding the

11  association is otherwise made in connection with the

12  requirements of chapter 718, chapter 719, chapter 721, or

13  chapter 723.

14         Section 5.  This act shall take effect October 1 of the

15  year in which enacted.

16

17            *****************************************

18                          HOUSE SUMMARY

19
      Revises provisions of law relating to homeowners'
20    associations to:
           1.  Prohibit commingling of association funds held
21    by the developer.
           2.  Revise provisions relating to the transition of
22    the homeowners' association control in a community.
           3.  Require the developer to provide the board with
23    a list of documents at the time the members are entitled
      to elect at least a majority of the members of the board
24    of directors of the homeowners' association.
           4.  Provide a list of prohibited clauses in
25    homeowners' association documents as void for being
      against public policy.
26         5.  Revise language with respect to disclosure to
      prospective purchasers.
27

28    See bill for details.

29

30

31

                                  7