Senate Bill sb0348c1

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    Florida Senate - 2001                            CS for SB 348

    By the Committee on Regulated Industries and Senators Pruitt
    and Geller




    315-1921-01

  1                      A bill to be entitled

  2         An act relating to condominiums; amending s.

  3         718.1255, F.S., relating to alternative dispute

  4         resolution procedures; providing for the

  5         expedited handling of any allegation of an

  6         irregularity in the election of any director of

  7         the board of administration of a condominium;

  8         amending s. 702.09, F.S.; revising the

  9         definitions of the terms "mortgage" and

10         "foreclosure proceedings"; amending s. 718.104,

11         F.S.; revising provisions with respect to

12         declarations for the creation of a condominium;

13         amending s. 718.106, F.S.; revising provisions

14         with respect to appurtenances that pass with a

15         condominium unit; amending s. 718.110, F.S.;

16         revising provisions with respect to amendments

17         to a declaration of condominium; amending s.

18         718.111, F.S.; revising provisions with respect

19         to the association; amending s. 718.112, F.S.;

20         revising provisions with respect to bylaws;

21         amending s. 718.113, F.S.; revising provisions

22         with respect to material alterations of common

23         elements or association real property operated

24         by a multicondominium association; amending s.

25         718.115, F.S.; revising provisions with respect

26         to common expenses; amending s. 718.405, F.S.;

27         revising provisions with respect to

28         multicondominiums and multicondominium

29         associations; amending s. 718.504, F.S.;

30         revising provisions with respect to the

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  1         prospectus or offering circular; providing an

  2         effective date.

  3

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

  5

  6         Section 1.  Section 718.1255, Florida Statutes, is

  7  amended to read:

  8         718.1255  Alternative dispute resolution; voluntary

  9  mediation; mandatory nonbinding arbitration; disputes

10  involving election irregularities; legislative findings.--

11         (1)  DEFINITIONS.--As used in this section, the term

12  "dispute" means any disagreement between two or more parties

13  that involves:

14         (a)  The authority of the board of directors, under

15  this chapter or association document to:

16         1.  Require any owner to take any action, or not to

17  take any action, involving that owner's unit or the

18  appurtenances thereto.

19         2.  Alter or add to a common area or element.

20         (b)  The failure of a governing body, when required by

21  this chapter or an association document, to:

22         1.  Properly conduct elections.

23         2.  Give adequate notice of meetings or other actions.

24         3.  Properly conduct meetings.

25         4.  Allow inspection of books and records.

26

27  "Dispute" does not include any disagreement that primarily

28  involves: title to any unit or common element; the

29  interpretation or enforcement of any warranty; the levy of a

30  fee or assessment, or the collection of an assessment levied

31  against a party; the eviction or other removal of a tenant

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  1  from a unit; alleged breaches of fiduciary duty by one or more

  2  directors; or claims for damages to a unit based upon the

  3  alleged failure of the association to maintain the common

  4  elements or condominium property.

  5         (2)  VOLUNTARY MEDIATION.--Voluntary mediation through

  6  Citizen Dispute Settlement Centers as provided for in s.

  7  44.201 is encouraged.

  8         (3)  LEGISLATIVE FINDINGS.--

  9         (a)  The Legislature finds that unit owners are

10  frequently at a disadvantage when litigating against an

11  association. Specifically, a condominium association, with its

12  statutory assessment authority, is often more able to bear the

13  costs and expenses of litigation than the unit owner who must

14  rely on his or her own financial resources to satisfy the

15  costs of litigation against the association.

16         (b)  The Legislature finds that the courts are becoming

17  overcrowded with condominium and other disputes, and further

18  finds that alternative dispute resolution has been making

19  progress in reducing court dockets and trials and in offering

20  a more efficient, cost-effective option to court litigation.

21  However, the Legislature also finds that alternative dispute

22  resolution should not be used as a mechanism to encourage the

23  filing of frivolous or nuisance suits.

24         (c)  There exists a need to develop a flexible means of

25  alternative dispute resolution that directs disputes to the

26  most efficient means of resolution.

27         (d)  The high cost and significant delay of circuit

28  court litigation faced by unit owners in the state can be

29  alleviated by requiring nonbinding arbitration and mediation

30  in appropriate cases, thereby reducing delay and attorney's

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  1  fees while preserving the right of either party to have its

  2  case heard by a jury, if applicable, in a court of law.

  3         (4)  MANDATORY NONBINDING ARBITRATION AND MEDIATION OF

  4  DISPUTES.--The Division of Florida Land Sales, Condominiums,

  5  and Mobile Homes of the Department of Business and

  6  Professional Regulation shall employ full-time attorneys to

  7  act as arbitrators to conduct the arbitration hearings

  8  provided by this chapter. The division may also certify

  9  attorneys who are not employed by the division to act as

10  arbitrators to conduct the arbitration hearings provided by

11  this section. No person may be employed by the department as a

12  full-time arbitrator unless he or she is a member in good

13  standing of The Florida Bar. The department shall promulgate

14  rules of procedure to govern such arbitration hearings

15  including mediation incident thereto.  The decision of an

16  arbitrator shall be final; however, such a decision shall not

17  be deemed final agency action. Nothing in this provision shall

18  be construed to foreclose parties from proceeding in a trial

19  de novo unless the parties have agreed that the arbitration is

20  binding. If such judicial proceedings are initiated, the final

21  decision of the arbitrator shall be admissible in evidence in

22  the trial de novo.

23         (a)  Prior to the institution of court litigation, a

24  party to a dispute shall petition the division for nonbinding

25  arbitration.  The petition must be accompanied by a filing fee

26  in the amount of $50.  Filing fees collected under this

27  section must be used to defray the expenses of the alternative

28  dispute resolution program.

29         (b)  The petition must recite, and have attached

30  thereto, supporting proof that the petitioner gave the

31  respondents:

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  1         1.  Advance written notice of the specific nature of

  2  the dispute;

  3         2.  A demand for relief, and a reasonable opportunity

  4  to comply or to provide the relief; and

  5         3.  Notice of the intention to file an arbitration

  6  petition or other legal action in the absence of a resolution

  7  of the dispute.

  8

  9  Failure to include the allegations or proof of compliance with

10  these prerequisites requires dismissal of the petition without

11  prejudice.

12         (c)  Upon receipt, the petition shall be promptly

13  reviewed by the division to determine the existence of a

14  dispute and compliance with the requirements of paragraphs (a)

15  and (b).  If emergency relief is required and is not available

16  through arbitration, a motion to stay the arbitration may be

17  filed.  The motion must be accompanied by a verified petition

18  alleging facts that, if proven, would support entry of a

19  temporary injunction, and if an appropriate motion and

20  supporting papers are filed, the division may abate the

21  arbitration pending a court hearing and disposition of a

22  motion for temporary injunction.

23         (d)  Upon determination by the division that a dispute

24  exists and that the petition substantially meets the

25  requirements of paragraphs (a) and (b) and any other

26  applicable rules, a copy of the petition shall forthwith be

27  served by the division upon all respondents.

28         (e)  Either before or after the filing of the

29  respondents' answer to the petition, any party may request

30  that the arbitrator refer the case to mediation under this

31  section and any rules adopted by the division.  Upon receipt

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  1  of a request for mediation, the division shall promptly

  2  contact the parties to determine if there is agreement that

  3  mediation would be appropriate.  If all parties agree, the

  4  dispute must be referred to mediation. Notwithstanding a lack

  5  of an agreement by all parties, the arbitrator may refer a

  6  dispute to mediation at any time.

  7         (f)  Upon referral of a case to mediation, the parties

  8  must select a mutually acceptable mediator.  To assist in the

  9  selection, the arbitrator shall provide the parties with a

10  list of both volunteer and paid mediators that have been

11  certified by the division under s. 718.501.  If the parties

12  are unable to agree on a mediator within the time allowed by

13  the arbitrator, the arbitrator shall appoint a mediator from

14  the list of certified mediators.  If a case is referred to

15  mediation, the parties shall attend a mediation conference, as

16  scheduled by the parties and the mediator.  If any party fails

17  to attend a duly noticed mediation conference, without the

18  permission or approval of the arbitrator or mediator, the

19  arbitrator must impose sanctions against the party, including

20  the striking of any pleadings filed, the entry of an order of

21  dismissal or default if appropriate, and the award of costs

22  and attorneys' fees incurred by the other parties. Unless

23  otherwise agreed to by the parties or as provided by order of

24  the arbitrator, a party is deemed to have appeared at a

25  mediation conference by the physical presence of the party or

26  its representative having full authority to settle without

27  further consultation, provided that an association may comply

28  by having one or more representatives present with full

29  authority to negotiate a settlement and recommend that the

30  board of administration ratify and approve such a settlement

31  within 5 days from the date of the mediation conference. The

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  1  parties shall share equally the expense of mediation, unless

  2  they agree otherwise.

  3         (g)  The purpose of mediation as provided for by this

  4  section is to present the parties with an opportunity to

  5  resolve the underlying dispute in good faith, and with a

  6  minimum expenditure of time and resources.

  7         (h)  Mediation proceedings must generally be conducted

  8  in accordance with the Florida Rules of Civil Procedure, and

  9  these proceedings are privileged and confidential to the same

10  extent as court-ordered mediation. Persons who are not parties

11  to the dispute are not allowed to attend the mediation

12  conference without the consent of all parties, with the

13  exception of counsel for the parties and corporate

14  representatives designated to appear for a party.  If the

15  mediator declares an impasse after a mediation conference has

16  been held, the arbitration proceeding terminates, unless all

17  parties agree in writing to continue the arbitration

18  proceeding, in which case the arbitrator's decision shall be

19  either binding or nonbinding, as agreed upon by the parties;

20  in the arbitration proceeding, the arbitrator shall not

21  consider any evidence relating to the unsuccessful mediation

22  except in a proceeding to impose sanctions for failure to

23  appear at the mediation conference. If the parties do not

24  agree to continue arbitration, the arbitrator shall enter an

25  order of dismissal, and either party may institute a suit in a

26  court of competent jurisdiction.  The parties may seek to

27  recover any costs and attorneys' fees incurred in connection

28  with arbitration and mediation proceedings under this section

29  as part of the costs and fees that may be recovered by the

30  prevailing party in any subsequent litigation.

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  1         (i)  Arbitration shall be conducted according to rules

  2  promulgated by the division. The filing of a petition for

  3  arbitration shall toll the applicable statute of limitations.

  4         (j)  At the request of any party to the arbitration,

  5  such arbitrator shall issue subpoenas for the attendance of

  6  witnesses and the production of books, records, documents, and

  7  other evidence and any party on whose behalf a subpoena is

  8  issued may apply to the court for orders compelling such

  9  attendance and production. Subpoenas shall be served and shall

10  be enforceable in the manner provided by the Florida Rules of

11  Civil Procedure. Discovery may, in the discretion of the

12  arbitrator, be permitted in the manner provided by the Florida

13  Rules of Civil Procedure. Rules adopted by the division may

14  authorize any reasonable sanctions except contempt for a

15  violation of the arbitration procedural rules of the division

16  or for the failure of a party to comply with a reasonable

17  nonfinal order issued by an arbitrator which is not under

18  judicial review.

19         (k)  The arbitration decision shall be presented to the

20  parties in writing. An arbitration decision is final in those

21  disputes in which the parties have agreed to be bound.  An

22  arbitration decision is also final if a complaint for a trial

23  de novo is not filed in a court of competent jurisdiction in

24  which the condominium is located within 30 days. The right to

25  file for a trial de novo entitles the parties to file a

26  complaint in the appropriate trial court for a judicial

27  resolution of the dispute. The prevailing party in an

28  arbitration proceeding shall be awarded the costs of the

29  arbitration and reasonable attorney's fees in an amount

30  determined by the arbitrator. Such an award shall include the

31  costs and reasonable attorney's fees incurred in the

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  1  arbitration proceeding as well as the costs and reasonable

  2  attorney's fees incurred in preparing for and attending any

  3  scheduled mediation.

  4         (l)  The party who files a complaint for a trial de

  5  novo shall be assessed the other party's arbitration costs,

  6  court costs, and other reasonable costs, including attorney's

  7  fees, investigation expenses, and expenses for expert or other

  8  testimony or evidence incurred after the arbitration hearing

  9  if the judgment upon the trial de novo is not more favorable

10  than the arbitration decision. If the judgment is more

11  favorable, the party who filed a complaint for trial de novo

12  shall be awarded reasonable court costs and attorney's fees.

13         (m)  Any party to an arbitration proceeding may enforce

14  an arbitration award by filing a petition in a court of

15  competent jurisdiction in which the condominium is located. A

16  petition may not be granted unless the time for appeal by the

17  filing of a complaint for trial de novo has expired. If a

18  complaint for a trial de novo has been filed, a petition may

19  not be granted with respect to an arbitration award that has

20  been stayed. If the petition for enforcement is granted, the

21  petitioner shall recover reasonable attorney's fees and costs

22  incurred in enforcing the arbitration award.  A mediation

23  settlement may also be enforced through the county or circuit

24  court, as applicable, and any costs and fees incurred in the

25  enforcement of a settlement agreement reached at mediation

26  must be awarded to the prevailing party in any enforcement

27  action.

28         (5)  DISPUTES INVOLVING ELECTION IRREGULARITIES.--Every

29  arbitration petition received by the division and required to

30  be filed under this section challenging the legality of the

31  election of any director of the board of administration shall

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  1  be handled on an expedited basis in the manner provided by

  2  division rules for recall arbitration disputes.

  3         Section 2.  Section 702.09, Florida Statutes, is

  4  amended to read:

  5         702.09  Definitions.--For the purposes of ss. 702.07

  6  and 702.08 the words "decree of foreclosure" shall include a

  7  judgment or order rendered or passed in the foreclosure

  8  proceedings in which the decree of foreclosure shall be

  9  rescinded, vacated, and set aside; the word "mortgage" shall

10  mean any written instrument securing the payment of money or

11  advances and shall include liens to secure payment of

12  assessments arising under chapters 718, 719, and 720; the word

13  "debt" shall include promissory notes, bonds, and all other

14  written obligations given for the payment of money; the words

15  "foreclosure proceedings" shall embrace every action in the

16  circuit or county courts of this state wherein it is sought to

17  foreclose a mortgage and sell the property covered by the

18  same; and the word "property" shall mean and include both real

19  and personal property.

20         Section 3.  Paragraph (h) of subsection (4) and

21  subsection (5) of section 718.104, Florida Statutes, are

22  amended to read:

23         718.104  Creation of condominiums; contents of

24  declaration.--Every condominium created in this state shall be

25  created pursuant to this chapter.

26         (4)  The declaration must contain or provide for the

27  following matters:

28         (h)  If a developer reserves the right, in a

29  declaration recorded on or after July 1, 2000, to create a

30  multicondominium, the declaration must state, or provide a

31  specific formula for determining, the fractional or percentage

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  1  shares of liability for the common expenses of the association

  2  and of ownership of the common surplus of the association to

  3  be allocated to the units in each condominium to be operated

  4  by the association.  If a the declaration recorded on or after

  5  July 1, 2000, for a condominium operated by a multicondominium

  6  association, as originally recorded, fails to so provide, the

  7  share of liability for the common expenses of the association

  8  and of ownership of the common surplus of the association

  9  allocated to each unit in each condominium operated by the

10  association shall be a fraction of the whole, the numerator of

11  which is the number "one" and the denominator of which is the

12  total number of units in all condominiums operated by the

13  association.

14         (5)  The declaration as originally recorded, or as

15  amended pursuant to the procedures provided therein, may

16  include covenants and restrictions concerning the use,

17  occupancy, and transfer of the units permitted by law with

18  reference to real property. With the exception of amendments

19  that materially modify unit appurtenances as provided in s.

20  718.110(4), amendments may be applied to owners of units

21  existing as of the effective date of the amendment. This

22  section is intended to clarify existing law and applies to

23  associations existing on the effective date of this act.

24  However, the rule against perpetuities shall not defeat a

25  right given any person or entity by the declaration for the

26  purpose of allowing unit owners to retain reasonable control

27  over the use, occupancy, and transfer of units.

28         Section 4.  Paragraph (b) of subsection (2) of section

29  718.106, Florida Statutes, is amended to read:

30         718.106  Condominium parcels; appurtenances; possession

31  and enjoyment.--

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  1         (2)  There shall pass with a unit, as appurtenances

  2  thereto:

  3         (b)  The exclusive right to use such portion of the

  4  common elements as may be provided by the declaration,

  5  including the right to transfer such right to other units or

  6  unit owners to the extent authorized by the declaration as

  7  originally recorded, or amendments to the declaration adopted

  8  pursuant to the provisions contained therein under s.

  9  718.110(2). Amendments to declarations of condominium

10  providing for the transfer of use rights with respect to

11  limited common elements are not amendments which materially

12  modify unit appurtenances as described in s. 718.110(4).

13  However, in order to be effective, the transfer of use rights

14  with respect to limited common elements must be effectuated in

15  conformity with the procedures set forth in the declaration as

16  originally recorded or as amended. Further, such transfers

17  must be evidenced by a written instrument which must be

18  executed with the formalities of a deed and recorded in the

19  land records of the county in which the condominium is located

20  in order to be effective. Such instrument of transfer must

21  also specify the legal description of the unit which is

22  transferring use rights, as well as the legal description of

23  the unit obtaining the transfer of such rights. This section

24  is intended to clarify existing law and applies to

25  associations existing on the effective date of this act.

26         Section 5.  Subsection (4) of section 718.110, Florida

27  Statutes, is amended to read:

28         718.110  Amendment of declaration; correction of error

29  or omission in declaration by circuit court.--

30         (4)  Unless otherwise provided in the declaration as

31  originally recorded, no amendment may change the configuration

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  1  or size of any unit in any material fashion, materially alter

  2  or modify the appurtenances to the unit, or change the

  3  proportion or percentage by which the unit owner shares the

  4  common expenses of the condominium and owns the common surplus

  5  of the condominium unless the record owner of the unit and all

  6  record owners of liens on the unit join in the execution of

  7  the amendment and unless all the record owners of all other

  8  units in the same condominium approve the amendment.  The

  9  acquisition of property by the association, and material

10  alterations or substantial additions to such property or the

11  common elements by the association in accordance with s.

12  718.111(7) or s. 718.113, amendments providing for the

13  transfer of use rights in limited common elements pursuant to

14  s. 718.106(2)(b), and amendments restricting or modifying the

15  right to lease condominium units shall not be deemed to

16  constitute a material alteration or modification of the

17  appurtenances to the units. With the exception of amendments

18  that materially modify unit appurtenances as provided in this

19  section, amendments may be applied to owners of units existing

20  as of the effective date of the amendment. This section is

21  intended to clarify existing law and applies to associations

22  existing on the effective date of this act. A declaration

23  recorded after April 1, 1992, may not require the approval of

24  less than a majority of total voting interests of the

25  condominium for amendments under this subsection, unless

26  otherwise required by a governmental entity.

27         Section 6.  Subsection (4), paragraph (a) of subsection

28  (7), and subsection (13) of section 718.111, Florida Statutes,

29  are amended to read:

30         718.111  The association.--

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  1         (4)  ASSESSMENTS; MANAGEMENT OF COMMON ELEMENTS.--The

  2  association has the power to make and collect assessments and

  3  to lease, maintain, repair, and replace the common elements or

  4  association property; however, the association may not charge

  5  a use fee against a unit owner for the use of common elements

  6  or association property unless otherwise provided for in the

  7  declaration of condominium or by a majority vote of the

  8  association or unless the charges relate to expenses incurred

  9  by an owner having exclusive use of the common elements or

10  association property.

11         (7)  TITLE TO PROPERTY.--

12         (a)  The association has the power to acquire title to

13  property or otherwise hold, convey, lease, and mortgage

14  association property for the use and benefit of its members.

15  The power to acquire personal property shall be exercised by

16  the board of administration. Except as otherwise permitted in

17  subsections (8) and (9) and in s. 718.114, no association may

18  acquire, convey, lease, or mortgage association real property

19  except in the manner provided in the declaration, and if the

20  declaration does not specify the procedure, then approval of

21  75 percent of the total voting interests shall be required.

22         (13)  FINANCIAL REPORTING.--Within 90 days after the

23  end of the fiscal year, or annually on a date provided in the

24  bylaws, the association shall prepare and complete, or

25  contract for the preparation and completion of cause to be

26  prepared and completed by a third party, a financial report

27  for the preceding fiscal year.  Within 21 days after the final

28  financial report is completed by the association or received

29  by the association from the third party, but in no event later

30  than 120 days after the end of the fiscal year, or such other

31  date as is provided in the bylaws, the association shall mail

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  1  to each unit owner at the address last furnished to the

  2  association by the unit owner, or hand deliver to each unit

  3  owner, a copy of the financial report or a notice that a copy

  4  of the financial report will be mailed or hand delivered to

  5  the unit owner, without charge, upon receipt of a written

  6  request from the unit owner.  The division shall adopt rules

  7  setting forth uniform accounting principles and standards to

  8  be used by all associations and shall adopt rules addressing

  9  financial reporting requirements for multicondominium

10  associations.  In adopting such rules, the division shall

11  consider the number of members and annual revenues of an

12  association.  Financial reports shall be prepared as follows:

13         (a)  An association that meets the criteria of this

14  paragraph shall prepare or cause to be prepared a complete set

15  of financial statements in accordance with generally accepted

16  accounting principles.  The financial statements shall be

17  based upon the association's total annual revenues, as

18  follows:

19         1.  An association with total annual revenues of

20  $100,000 or more, but less than $200,000, shall prepare

21  compiled financial statements.

22         2.  An association with total annual revenues of at

23  least $200,000, but less than $400,000, shall prepare reviewed

24  financial statements.

25         3.  An association with total annual revenues of

26  $400,000 or more shall prepare audited financial statements.

27         (b)1.  An association with total annual revenues of

28  less than $100,000 shall prepare a report of cash receipts and

29  expenditures.

30         2.  An association which operates less than 50 units,

31  regardless of the association's annual revenues, shall prepare

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  1  a report of cash receipts and expenditures in lieu of

  2  financial statements required by paragraph (a).

  3         3.  A report of cash receipts and disbursements must

  4  disclose the amount of receipts by accounts and receipt

  5  classifications and the amount of expenses by accounts and

  6  expense classifications, including, but not limited to, the

  7  following, as applicable: costs for security, professional and

  8  management fees and expenses, taxes, costs for recreation

  9  facilities, expenses for refuse collection and utility

10  services, expenses for lawn care, costs for building

11  maintenance and repair, insurance costs, administration and

12  salary expenses, and reserves accumulated and expended for

13  capital expenditures, deferred maintenance, and any other

14  category for which the association maintains reserves.

15         (c)  An association may prepare or cause to be

16  prepared, without a meeting of or approval by the unit owners:

17         1.  Compiled, reviewed, or audited financial

18  statements, if the association is required to prepare a report

19  of cash receipts and expenditures;

20         2.  Reviewed or audited financial statements, if the

21  association is required to prepare compiled financial

22  statements; or

23         3.  Audited financial statements if the association is

24  required to prepare reviewed financial statements.

25         (d)  If approved by a majority of the voting interests

26  present at a properly called meeting of the association, an

27  association may prepare or cause to be prepared:

28         1.  A report of cash receipts and expenditures in lieu

29  of a compiled, reviewed, or audited financial statement;

30

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  1         2.  A report of cash receipts and expenditures or a

  2  compiled financial statement in lieu of a reviewed or audited

  3  financial statement; or

  4         3.  A report of cash receipts and expenditures, a

  5  compiled financial statement, or a reviewed financial

  6  statement in lieu of an audited financial statement.

  7

  8  Such meeting and approval must occur prior to the end of the

  9  fiscal year and is effective only for the fiscal year in which

10  the vote is taken. With respect to an association to which the

11  developer has not turned over control of the association, all

12  unit owners, including the developer, may vote on issues

13  related to the preparation of financial reports for the first

14  2 fiscal years of the association's operation, beginning with

15  the fiscal year in which the declaration is recorded.

16  Thereafter, all unit owners except the developer may vote on

17  such issues until control is turned over to the association by

18  the developer.

19         Section 7.  Subsection (3) of section 718.112, Florida

20  Statutes, is amended to read:

21         718.112  Bylaws.--

22         (3)  OPTIONAL PROVISIONS.--The bylaws as originally

23  recorded, or as amended pursuant to the procedure provided

24  therein, may provide for the following:

25         (a)  A method of adopting and amending administrative

26  rules and regulations governing the details of the operation

27  and use of the common elements.

28         (b)  Restrictions on and requirements for the use,

29  maintenance, and appearance of the units and the use of the

30  common elements.

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  1         (c)  Other provisions which are not inconsistent with

  2  this chapter or with the declaration, as may be desired. This

  3  subsection is intended to clarify existing law and applies to

  4  associations existing on the effective date of this act.

  5         Section 8.  Subsection (2) of section 718.113, Florida

  6  Statutes, is amended to read:

  7         718.113  Maintenance; limitation upon improvement;

  8  display of flag; hurricane shutters.--

  9         (2)(a)  Except as otherwise provided in this section,

10  there shall be no material alteration or substantial additions

11  to the common elements or to real property which is

12  association property, except in a manner provided in the

13  declaration as originally recorded or as amended pursuant to

14  the procedures provided therein.  If the declaration as

15  originally recorded or amended does not specify the procedure

16  for approval of material alterations or substantial additions,

17  75 percent of the total voting interests of the association

18  must approve the alterations or additions. This paragraph is

19  intended to clarify existing law and applies to associations

20  existing on the effective date of this act.

21         (b)  There shall not be any material alteration of, or

22  substantial addition to, the common elements of any

23  condominium operated by a multicondominium association unless

24  approved in the manner provided in the declaration of the

25  affected condominium or condominiums as originally recorded,

26  or as amended pursuant to the procedures provided therein. If

27  a declaration as originally recorded or amended does not

28  specify a procedure for approving such an alteration or

29  addition, the approval of 75 percent of the total voting

30  interests of each affected condominium is required. This

31  subsection does not prohibit a provision in any declaration,

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  1  articles of incorporation, or bylaws as originally recorded or

  2  amended requiring the approval of unit owners in any

  3  condominium operated by the same association or requiring

  4  board approval before a material alteration or substantial

  5  addition to the common elements is permitted. This paragraph

  6  is intended to clarify existing law and applies to

  7  associations existing on the effective date of this act.

  8         (c)  There shall not be any material alteration or

  9  substantial addition made to association real property

10  operated by a multicondominium association, except as provided

11  in the declaration, articles of incorporation, or bylaws as

12  said documents are originally recorded or amended pursuant to

13  the procedures provided therein. If the declaration, articles

14  of incorporation, or bylaws do not specify the procedure for

15  approving an alteration or addition to association real

16  property, the approval of 75 percent of the total voting

17  interests of the association is required. This paragraph is

18  intended to clarify existing law and applies to associations

19  existing on the effective date of this act.

20         Section 9.  Paragraphs (b) and (c) of subsection (1) of

21  section 718.115, Florida Statutes, are amended to read:

22         718.115  Common expenses and common surplus.--

23         (1)

24         (b)  The common expenses of a condominium within a

25  multicondominium are the common expenses directly attributable

26  to the operation of that condominium. The common expenses of a

27  multicondominium association do not include the common

28  expenses directly attributable to the operation of any

29  specific condominium or condominiums within the

30  multicondominium. This paragraph is intended to clarify

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  1  existing law and applies to associations existing on the

  2  effective date of this act.

  3         (c)  The common expenses of a multicondominium

  4  association may include categories of expenses related to the

  5  property or common elements within a specific condominium in

  6  the multicondominium if such property or common elements are

  7  areas in which all members of the multicondominium association

  8  have use rights or from which all members receive tangible

  9  economic benefits. Such common expenses of the association

10  shall be identified in the declaration or bylaws of each

11  condominium within the multicondominium association. This

12  paragraph is intended to clarify existing law and applies to

13  associations existing on the effective date of this act.

14         Section 10.  Subsections (1) and (4) of section

15  718.405, Florida Statutes, are amended to read:

16         718.405  Multicondominiums; multicondominium

17  associations.--

18         (1)  An association may operate more than one

19  condominium. For multicondominiums created on or after July 1,

20  2000, if the declaration for each condominium to be operated

21  by that association shall provide provides for participation

22  in a multicondominium, in conformity with this section, and

23  disclose discloses or describe describes:

24         (a)  The manner or formula by which the assets,

25  liabilities, common surplus, and common expenses of the

26  association will be apportioned among the units within the

27  condominiums operated by the association, in accordance with

28  s. 718.104(4)(g) or (h), as applicable.

29         (b)  Whether unit owners in any other condominium, or

30  any other persons, will or may have the right to use

31  recreational areas or any other facilities or amenities that

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  1  are common elements of the condominium, and, if so, the

  2  specific formula by which the other users will share the

  3  common expenses related to those facilities or amenities.

  4         (c)  Recreational and other commonly used facilities or

  5  amenities which the developer has committed to provide that

  6  will be owned, leased by, or dedicated by a recorded plat to

  7  the association but which are not included within any

  8  condominium operated by the association. The developer may

  9  reserve the right to add additional facilities or amenities if

10  the declaration and prospectus for each condominium to be

11  operated by the association contains the following statement

12  in conspicuous type and in substantially the following form:

13  RECREATIONAL FACILITIES MAY BE EXPANDED OR ADDED WITHOUT

14  CONSENT OF UNIT OWNERS OR THE ASSOCIATION.

15         (d)  The voting rights of the unit owners in the

16  election of directors and in other multicondominium

17  association affairs when a vote of the owners is taken,

18  including, but not limited to, a statement as to whether each

19  unit owner will have a right to personally cast his or her own

20  vote in all matters voted upon.

21         (4)  This section does not prevent or restrict the

22  formation of a multicondominium by the merger or consolidation

23  of two or more condominium associations. Mergers or

24  consolidations of associations shall be accomplished in

25  accordance with this chapter, the declarations of the

26  condominiums being merged or consolidated, and chapter 617.

27  Section 718.110(4) does not apply to amendments to

28  declarations necessary to effect a merger or consolidation.

29  This section is intended to clarify existing law and applies

30  to associations existing on the effective date of this act.

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  1         Section 11.  Subsection (15) of section 718.504,

  2  Florida Statutes, is amended to read:

  3         718.504  Prospectus or offering circular.--Every

  4  developer of a residential condominium which contains more

  5  than 20 residential units, or which is part of a group of

  6  residential condominiums which will be served by property to

  7  be used in common by unit owners of more than 20 residential

  8  units, shall prepare a prospectus or offering circular and

  9  file it with the Division of Florida Land Sales, Condominiums,

10  and Mobile Homes prior to entering into an enforceable

11  contract of purchase and sale of any unit or lease of a unit

12  for more than 5 years and shall furnish a copy of the

13  prospectus or offering circular to each buyer.  In addition to

14  the prospectus or offering circular, each buyer shall be

15  furnished a separate page entitled "Frequently Asked Questions

16  and Answers," which shall be in accordance with a format

17  approved by the division and a copy of the financial

18  information required by s. 718.111.  This page shall, in

19  readable language, inform prospective purchasers regarding

20  their voting rights and unit use restrictions, including

21  restrictions on the leasing of a unit; shall indicate whether

22  and in what amount the unit owners or the association is

23  obligated to pay rent or land use fees for recreational or

24  other commonly used facilities; shall contain a statement

25  identifying that amount of assessment which, pursuant to the

26  budget, would be levied upon each unit type, exclusive of any

27  special assessments, and which shall further identify the

28  basis upon which assessments are levied, whether monthly,

29  quarterly, or otherwise; shall state and identify any court

30  cases in which the association is currently a party of record

31  in which the association may face liability in excess of

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  1  $100,000; and which shall further state whether membership in

  2  a recreational facilities association is mandatory, and if so,

  3  shall identify the fees currently charged per unit type.  The

  4  division shall by rule require such other disclosure as in its

  5  judgment will assist prospective purchasers. The prospectus or

  6  offering circular may include more than one condominium,

  7  although not all such units are being offered for sale as of

  8  the date of the prospectus or offering circular.  The

  9  prospectus or offering circular must contain the following

10  information:

11         (15)  If a the condominium created on or after July 1,

12  2000, is or may become part of a multicondominium, the

13  following information must be provided:

14         (a)  A statement in conspicuous type in substantially

15  the following form:  THIS CONDOMINIUM IS (MAY BE) PART OF A

16  MULTICONDOMINIUM DEVELOPMENT IN WHICH OTHER CONDOMINIUMS WILL

17  (MAY) BE OPERATED BY THE SAME ASSOCIATION. Immediately

18  following this statement, the location in the prospectus or

19  offering circular and its exhibits where the multicondominium

20  aspects of the offering are described must be stated.

21         (b)  A summary of the provisions in the declaration,

22  articles of incorporation, and bylaws which establish and

23  provide for the operation of the multicondominium, including a

24  statement as to whether unit owners in the condominium will

25  have the right to use recreational or other facilities located

26  or planned to be located in other condominiums operated by the

27  same association, and the manner of sharing the common

28  expenses related to such facilities.

29         (c)  A statement of the minimum and maximum number of

30  condominiums, and the minimum and maximum number of units in

31  each of those condominiums, which will or may be operated by

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  1  the association, and the latest date by which the exact number

  2  will be finally determined.

  3         (d)  A statement as to whether any of the condominiums

  4  in the multicondominium may include units intended to be used

  5  for nonresidential purposes and the purpose or purposes

  6  permitted for such use.

  7         (e)  A general description of the location and

  8  approximate acreage of any land on which any additional

  9  condominiums to be operated by the association may be located.

10         Section 12.  This act shall take effect July 1, 2001.

11

12          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
13                              SB 348

14

15  This bill provides for expedited arbitration of condominium
    elections disputes by the Division of Land Sales,
16  Condominiums, and Mobile Homes of the Department of Business
    and Professional Regulation (division) whereby the division is
17  required to respond to the challenge in the same manner as
    provided in division rule for recall arbitration disputes. The
18  bill also modifies the definitions of the terms "mortgage" and
    "foreclosure proceedings" to provide that condominium
19  association assessment liens are included within those liens
    that are reinstated if a foreclosure judgment is vacated.  The
20  bill clarifies current law regarding multicondominium
    associations, clarifies current law regarding the ability of
21  condominium associations to restrict condominium leasing
    rights of existing owners through amendments, and clarifies
22  unit owners' ability to amend declarations of condominium to
    permit the transfer of limited common elements. The bill
23  extends the filing deadline for financial reports, clarifies
    current law regarding condominium bylaws, and clarifies
24  current law regarding an association's right to amend
    declarations to provide for material alterations or
25  substantial additions to common elements and association
    property. Finally, the bill makes certain laws applicable to
26  associations in existence on the date this bill takes effect.

27

28

29

30

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