Senate Bill 0544c1

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    Florida Senate - 1998                            CS for SB 544

    By the Committee on Judiciary and Senator Dyer





    308-1998-98

  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 provisions with respect

  6         to the transition of homeowners' association

  7         control in a community; providing a list of

  8         required documents that must be provided to the

  9         board by the developer; creating s. 617.3075,

10         F.S.; providing for prohibited clauses in

11         homeowners' association documents; amending s.

12         689.26, F.S.; revising provisions with respect

13         to disclosure to prospective purchasers;

14         requiring certain information to be included in

15         disclosures; providing an effective date.

16

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

18

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

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

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

22         617.303  Association powers and duties; meetings of

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

24         (8)  ASSOCIATION FUNDS; COMMINGLING.--

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

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

27  operating funds of the association shall not be commingled

28  prior to turnover except the association may jointly invest

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

30  accounted for separately.

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    Florida Senate - 1998                            CS for SB 544
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  1         (b)  No developer in control of a homeowners'

  2  association shall commingle any association funds with his or

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

  4  association or community association.

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

  6  Statutes, is amended, present subsection (3) of that section

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

  8  added to that section to read:

  9         617.307  Transition of homeowners' association control

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

11  defined in s. 617.301:

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

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

14  directors of the homeowners' association when the earlier of

15  the following events occurs:

16         (a)  Three months after 90 percent of the parcels in

17  all phases of the community that will ultimately be operated

18  by the homeowners' association have been conveyed to members;

19  or

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

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

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

23  with the requirements of any governmentally chartered entity

24  with regard to the mortgage financing of parcels.

25

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

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

28  or others who purchase a parcel for the purpose of

29  constructing improvements thereon for resale.

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

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

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    Florida Senate - 1998                            CS for SB 544
    308-1998-98




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

  2  within no more than 90 days, deliver the following documents

  3  to the board:

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

  5  association.

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

  7  covenants and restrictions.

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

  9  of the association.

10         (d)  A copy of the bylaws.

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

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

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

14  have been adopted.

15         (h)  Resignations of directors who are required to

16  resign because the developer is required to relinquish control

17  of the association.

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

19  date of incorporation through the date of turnover.

20         (j)  All association funds and control thereof.

21         (k)  All tangible property of the association.

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

23  the association as one of the parties.

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

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

26  current employ of the association.

27         (n)  Any and all insurance policies in effect.

28         (o)  Any permits issued to the association by

29  governmental entities.

30         (p)  Any and all warranties in effect.

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    Florida Senate - 1998                            CS for SB 544
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  1         (q)  A roster of current homeowners and their addresses

  2  and telephone numbers and section and lot numbers.

  3         (r)  Employment and service contracts in effect.

  4         (s)  All other contracts in effect to which the

  5  association is a party.

  6         Section 3.  Section 617.3075, Florida Statutes, is

  7  created to read:

  8         617.3075  Prohibited clauses in homeowners' association

  9  documents.--

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

11  this state prohibits the inclusion or enforcement of certain

12  types of clauses in homeowners' association documents,

13  including declaration of covenants, articles of incorporation,

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

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

16  provide that:

17         (a)  A developer has the unilateral ability and right

18  to make changes to the homeowners' association documents after

19  the transition of homeowners' association control in a

20  community from the developer to the nondeveloper members, as

21  set forth in s. 617.307, has occurred.

22         (b)  A homeowners' association is prohibited or

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

24  homeowners' association is otherwise effectively prohibited or

25  restricted from bringing a lawsuit against the developer.

26         (c)  After the transition of homeowners' association

27  control in a community from the developer to the nondeveloper

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

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

30  per residential lot.

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    Florida Senate - 1998                            CS for SB 544
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  1  Such clauses are hereby declared null and void as against the

  2  public policy of this state.

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

  4  prohibits the inclusion or enforcement of such clauses created

  5  on or after the effective date of this section.

  6         Section 4.  Section 689.26, Florida Statutes, is

  7  amended to read:

  8         689.26  Prospective purchasers subject to association

  9  membership requirement; disclosure required.--

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

11  presented a disclosure summary before executing the contract

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

13  substantially similar to the following form:

14

15                        DISCLOSURE SUMMARY

16                                FOR

17                        (NAME OF COMMUNITY)

18

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

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

21         2.  THERE HAVE BEEN OR WILL BE RECORDED RESTRICTIVE

22  COVENANTS GOVERNING THE USE AND OCCUPANCY OF PROPERTIES IN

23  THIS COMMUNITY.

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

25  ASSOCIATION, WHICH ASSESSMENTS ARE SUBJECT TO PERIODIC CHANGE.

26         4.  YOUR FAILURE TO PAY THESE ASSESSMENTS COULD RESULT

27  IN A LIEN ON YOUR PROPERTY.

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

29  LAND USE FEES FOR RECREATIONAL OR OTHER COMMONLY USED

30  FACILITIES AS AN OBLIGATION OF MEMBERSHIP IN THE HOMEOWNERS'

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    Florida Senate - 1998                            CS for SB 544
    308-1998-98




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

  2  the current obligation shall be set forth.)

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

  4  WITHOUT THE APPROVAL OF THE ASSOCIATION MEMBERSHIP.

  5         7.  THE STATEMENTS CONTAINED IN THIS DISCLOSURE FORM

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

  7  YOU SHOULD REFER TO THE COVENANTS AND THE ASSOCIATION

  8  GOVERNING DOCUMENTS.

  9         8.  THESE DOCUMENTS ARE MATTERS OF PUBLIC RECORD AND

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

11  PROPERTY IS LOCATED.

12  DATE:                                               PURCHASER:

13                                                      PURCHASER:

14

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

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

17  developer. Any contract or agreement for sale shall refer to

18  and incorporate the disclosure summary and shall include, in

19  prominent language, a statement that the potential buyer

20  should not execute the contract or agreement until he or she

21  has received and read the disclosure summary required by this

22  section.

23         (2)  This section does not apply to any association

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

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

26  and also does not apply if disclosure regarding the

27  association is otherwise made in connection with the

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

29  chapter 723.

30         Section 5.  This act shall take effect October 1, 1998.

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    Florida Senate - 1998                            CS for SB 544
    308-1998-98




  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 544

  3

  4  The Committee Substitute for Senate Bill 544:

  5  -    Removes the portion of the bill which would provide for
         transition of control over homeowners' associations three
  6       months after 90 percent of the parcels that are platted
         have a site approved, are approved for land use, or are
  7       otherwise approved by the governmental authority, prior
         to the first unit sold, have been conveyed to members;
  8       and restores language of the present statute;

  9  -    Provides that on the day that members are entitled to
         elect a majority of the board of directors, the developer
10       must deliver the following documents to the board of
         directors within days rather than immediately:
11
         -    Names and addresses of current employees;
12
         -    Insurance policies in effect;
13
         -    A roster of current homeowners; and
14
         -    Association contracts which are in effect;
15
    -    Removes language which would have prohibited contract
16       clauses providing for developer vetoes after transition
         to the association;
17
    -    Prohibits contractual provisions which would entitle a
18       developer to cast votes which exceed one vote per
         residential lot after transition of control to
19       homeowner's association;

20  -    Deletes language which would have allowed purchasers to
         cancel contracts for up to seven days if developer fails
21       to comply with disclosure requirements and instead
         requires all contracts and agreements of sale to include
22       and incorporate a disclosure summary and a statement that
         buyers should not execute the contract until they have
23       received and read the disclosure summary; and

24  -    Deletes language which would have allowed purchasers to
         cancel contracts for up to seven days if the developer
25       fails to provide a written description of planned
         amenities.
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