HB 0165 2003
1	A bill to be entitled
2	An act relating to homeowners’ associations; amending s.
3	702.09, F.S.; redefining the term “mortgage” to include
4	liens created pursuant to a homeowners’ association as
5	defined in s. 712.01, F.S.; amending s. 718.111, F.S.;
6	revising language with respect to official records of the
7	condominium association authorizing the association to
8	provide certain information to prospective purchasers or
9	lienholders under certain circumstances; providing for
10	immunity from liability; authorizing fees; amending s.
11	718.112, F.S.; revising language with respect to
12	condominium bylaws to allow the use of limited proxies for
13	votes taken to waive certain financial reporting
14	requirements; prohibiting the requirement of retrofitting
15	for enhanced fire protection systems under certain
16	circumstances; amending s. 718.303, F.S.; providing that
17	certain actions with respect to the obligation of
18	condominium owners shall not be deemed actions for
19	specific performance; amending s. 719.104, F.S.; revising
20	language with respect to official records of the
21	cooperative association authorizing the association to
22	provide certain information to prospective purchasers or
23	lienholders under certain circumstances; providing for
24	immunity from liability; authorizing fees; amending s.
25	719.303, F.S.; providing that certain actions with respect
26	to the obligation of cooperative owners shall not be
27	deemed actions for specific performance; amending s.
28	720.302, F.S.; providing that corporations not for profit
29	that operate residential homeowners’ associations shall be
30	governed by and subject to the provisions of ch. 617,
31	F.S.; providing an effective date.
32
33	Be It Enacted by the Legislature of the State of Florida:
34
35	Section 1. Section 702.09, Florida Statutes, is amended to
36	read:
37	702.09 Definitions.--For the purposes of ss. 702.07 and
38	702.08 the words "decree of foreclosure" shall include a
39	judgment or order rendered or passed in the foreclosure
40	proceedings in which the decree of foreclosure shall be
41	rescinded, vacated, and set aside; the word "mortgage" shall
42	mean any written instrument securing the payment of money or
43	advances and includes liens to secure payment of assessments
44	arising under chapters 718 and 719and liens created pursuant to
45	the recorded covenants of a homeowners’ association as defined
46	in s. 712.01; the word "debt" shall include promissory notes,
47	bonds, and all other written obligations given for the payment
48	of money; the words "foreclosure proceedings" shall embrace
49	every action in the circuit or county courts of this state
50	wherein it is sought to foreclose a mortgage and sell the
51	property covered by the same; and the word "property" shall mean
52	and include both real and personal property.
53	Section 2. Subsection (12) of section 718.111, Florida
54	Statutes, is amended to read:
55	718.111 The association.--
56	(12) OFFICIAL RECORDS.--
57	(a) From the inception of the association, the association
58	shall maintain each of the following items, when applicable,
59	which shall constitute the official records of the association:
60	1. A copy of the plans, permits, warranties, and other
61	items provided by the developer pursuant to s. 718.301(4).
62	2. A photocopy of the recorded declaration of condominium
63	of each condominium operated by the association and of each
64	amendment to each declaration.
65	3. A photocopy of the recorded bylaws of the association
66	and of each amendment to the bylaws.
67	4. A certified copy of the articles of incorporation of
68	the association, or other documents creating the association,
69	and of each amendment thereto.
70	5. A copy of the current rules of the association.
71	6. A book or books which contain the minutes of all
72	meetings of the association, of the board of directors, and of
73	unit owners, which minutes shall be retained for a period of not
74	less than 7 years.
75	7. A current roster of all unit owners and their mailing
76	addresses, unit identifications, voting certifications, and, if
77	known, telephone numbers.
78	8. All current insurance policies of the association and
79	condominiums operated by the association.
80	9. A current copy of any management agreement, lease, or
81	other contract to which the association is a party or under
82	which the association or the unit owners have an obligation or
83	responsibility.
84	10. Bills of sale or transfer for all property owned by
85	the association.
86	11. Accounting records for the association and separate
87	accounting records for each condominium which the association
88	operates. All accounting records shall be maintained for a
89	period of not less than 7 years. The accounting records shall
90	include, but are not limited to:
91	a. Accurate, itemized, and detailed records of all
92	receipts and expenditures.
93	b. A current account and a monthly, bimonthly, or
94	quarterly statement of the account for each unit designating the
95	name of the unit owner, the due date and amount of each
96	assessment, the amount paid upon the account, and the balance
97	due.
98	c. All audits, reviews, accounting statements, and
99	financial reports of the association or condominium.
100	d. All contracts for work to be performed. Bids for work
101	to be performed shall also be considered official records and
102	shall be maintained for a period of 1 year.
103	12. Ballots, sign-in sheets, voting proxies, and all other
104	papers relating to voting by unit owners, which shall be
105	maintained for a period of 1 year from the date of the election,
106	vote, or meeting to which the document relates.
107	13. All rental records, when the association is acting as
108	agent for the rental of condominium units.
109	14. A copy of the current question and answer sheet as
110	described by s. 718.504.
111	15. All other records of the association not specifically
112	included in the foregoing which are related to the operation of
113	the association.
114	(b) The official records of the association shall be
115	maintained within the state. The records of the association
116	shall be made available to a unit owner within 5 working days
117	after receipt of written request by the board or its designee.
118	This paragraph may be complied with by having a copy of the
119	official records of the association available for inspection or
120	copying on the condominium property or association property.
121	(c) The official records of the association are open to
122	inspection by any association member or the authorized
123	representative of such member at all reasonable times. The right
124	to inspect the records includes the right to make or obtain
125	copies, at the reasonable expense, if any, of the association
126	member. The association may adopt reasonable rules regarding the
127	frequency, time, location, notice, and manner of record
128	inspections and copying. The failure of an association to
129	provide the records within 10 working days after receipt of a
130	written request shall create a rebuttable presumption that the
131	association willfully failed to comply with this paragraph. A
132	unit owner who is denied access to official records is entitled
133	to the actual damages or minimum damages for the association's
134	willful failure to comply with this paragraph. The minimum
135	damages shall be $50 per calendar day up to 10 days, the
136	calculation to begin on the 11th working day after receipt of
137	the written request. The failure to permit inspection of the
138	association records as provided herein entitles any person
139	prevailing in an enforcement action to recover reasonable
140	attorney's fees from the person in control of the records who,
141	directly or indirectly, knowingly denied access to the records
142	for inspection. The association shall maintain an adequate
143	number of copies of the declaration, articles of incorporation,
144	bylaws, and rules, and all amendments to each of the foregoing,
145	as well as the question and answer sheet provided for in s.
146	718.504 and year-end financial information required in this
147	section on the condominium property to ensure their availability
148	to unit owners and prospective purchasers, and may charge its
149	actual costs for preparing and furnishing these documents to
150	those requesting the same. Notwithstanding the provisions of
151	this paragraph, the following records shall not be accessible to
152	unit owners:
153	1. Any record protected by the lawyer-client privilege as
154	described in s. 90.502; and any record protected by the work-
155	product privilege, including any record prepared by an
156	association attorney or prepared at the attorney's express
157	direction; which reflects a mental impression, conclusion,
158	litigation strategy, or legal theory of the attorney or the
159	association, and which was prepared exclusively for civil or
160	criminal litigation or for adversarial administrative
161	proceedings, or which was prepared in anticipation of imminent
162	civil or criminal litigation or imminent adversarial
163	administrative proceedings until the conclusion of the
164	litigation or adversarial administrative proceedings.
165	2. Information obtained by an association in connection
166	with the approval of the lease, sale, or other transfer of a
167	unit.
168	3. Medical records of unit owners.
169	(d) The association shall prepare a question and answer
170	sheet as described in s. 718.504, and shall update it annually.
171	(e) The association or its authorized agent shall not be
172	required to provide a prospective purchaser or lienholder with
173	information about the condominium or the association other than
174	information or documents required by this chapter to be made
175	available or disclosed.
176	1. If, for the convenience of the members, the association
177	elects to provide requested information not required by law to
178	be made available or disclosed to prospective purchasers or
179	lienholders, the association may do so, and the association and
180	its authorized agent shall be immune from suit by any person or
181	entity for information given in good faith if the association or
182	its authorized agent accompanies such information with a written
183	statement in substantially the following form:
184
185	The information contained herein, to the extent not
186	required to be provided by the Florida Condominium
187	Act, is provided without warranty or certification of
188	any sort. Reliance on the accuracy of this
189	information, if provided in good faith, is at the sole
190	risk of the person or entity choosing to rely thereon.
191	You are encouraged to review original documentation
192	that may be available rather than relying on
193	summaries, compilations, statements of opinion, or
194	anecdotal information which may be the source of our
195	information. Florida law provides immunity from suit
196	for good faith information, even if it is later
197	determined to be inaccurate.
198
199	2. The association or its authorized agent shall be
200	entitled to charge a reasonable fee to the prospective
201	purchaser, lienholder, or the current unit owner for its time in
202	providing good faith responses to requests for information by or
203	on behalf of a prospective purchaser or lienholder, other than
204	that required by law, provided that such fee shall not exceed
205	$150 plus the reasonable cost of photocopying and any attorney’s
206	fees incurred by the association.
207	Section 3. Paragraphs (b) and (l) of subsection (2) of
208	section 718.112, Florida Statutes, are amended to read:
209	718.112 Bylaws.--
210	(2) REQUIRED PROVISIONS.--The bylaws shall provide for the
211	following and, if they do not do so, shall be deemed to include
212	the following:
213	(b) Quorum; voting requirements; proxies.--
214	1. Unless a lower number is provided in the bylaws, the
215	percentage of voting interests required to constitute a quorum
216	at a meeting of the members shall be a majority of the voting
217	interests. Unless otherwise provided in this chapter or in the
218	declaration, articles of incorporation, or bylaws, and except as
219	provided in subparagraph (d)3., decisions shall be made by
220	owners of a majority of the voting interests represented at a
221	meeting at which a quorum is present.
222	2. Except as specifically otherwise provided herein, after
223	January 1, 1992, unit owners may not vote by general proxy, but
224	may vote by limited proxies substantially conforming to a
225	limited proxy form adopted by the division. Limited proxies and
226	general proxies may be used to establish a quorum. Limited
227	proxies shall be used for votes taken to waive or reduce
228	reserves in accordance with subparagraph (f)2.;for votes taken
229	to waive the financial reporting requirements of s. 718.111(13);
230	for votes taken to amend the declaration pursuant to s. 718.110;
231	for votes taken to amend the articles of incorporation or bylaws
232	pursuant to this section; and for any other matter for which
233	this chapter requires or permits a vote of the unit owners.
234	Except as provided in paragraph (d), after January 1, 1992, no
235	proxy, limited or general, shall be used in the election of
236	board members. General proxies may be used for other matters for
237	which limited proxies are not required, and may also be used in
238	voting for nonsubstantive changes to items for which a limited
239	proxy is required and given. Notwithstanding the provisions of
240	this subparagraph, unit owners may vote in person at unit owner
241	meetings. Nothing contained herein shall limit the use of
242	general proxies or require the use of limited proxies for any
243	agenda item or election at any meeting of a timeshare
244	condominium association.
245	3. Any proxy given shall be effective only for the
246	specific meeting for which originally given and any lawfully
247	adjourned meetings thereof. In no event shall any proxy be valid
248	for a period longer than 90 days after the date of the first
249	meeting for which it was given. Every proxy is revocable at any
250	time at the pleasure of the unit owner executing it.
251	4. A member of the board of administration or a committee
252	may submit in writing his or her agreement or disagreement with
253	any action taken at a meeting that the member did not attend.
254	This agreement or disagreement may not be used as a vote for or
255	against the action taken and may not be used for the purposes of
256	creating a quorum.
257	5. When any of the board or committee members meet by
258	telephone conference, those board or committee members attending
259	by telephone conference may be counted toward obtaining a quorum
260	and may vote by telephone. A telephone speaker must be used so
261	that the conversation of those board or committee members
262	attending by telephone may be heard by the board or committee
263	members attending in person as well as by any unit owners
264	present at a meeting.
265	(l) Certificate of compliance.--There shall be a provision
266	that a certificate of compliance from a licensed electrical
267	contractor or electrician may be accepted by the association's
268	board as evidence of compliance of the condominium units to the
269	applicable fire and life safety code.Notwithstanding the
270	provisions of chapter 633 or of any other statute, ordinance,
271	administrative rule or regulation, nor any interpretation of the
272	foregoing, no association, condominium, or unit owner shall be
273	obligated to retrofit the common elements or units of a
274	residential condominium with a fire sprinkler system or other
275	enhanced fire protection system in a building that has been
276	certified for occupancy by the applicable governmental entity,
277	provided that the unit owners have voted to forego such
278	retrofitting by the affirmative vote of two-thirds of all voting
279	interests. Such vote may be taken at a duly noticed meeting or
280	by written consent without a meeting, and shall be effective
281	upon the recording of a duly executed certificate attesting to
282	such vote in the public records for the county where the
283	condominium is located. As part of the information collected
284	annually from condominiums by the division, it shall require
285	condominium associations to report the membership vote and
286	recording of a certificate under this subsection and, if
287	retrofitting has been undertaken, the per-unit cost of such
288	work. The division shall annually report to the Department of
289	Insurance, State Fire Marshal’s Office, the number of
290	condominiums that have elected to forego retrofitting.
291	Section 4. Subsection (1) of section 718.303, Florida
292	Statutes, is amended to read:
293	718.303 Obligations of owners; waiver; levy of fine
294	against unit by association.--
295	(1) Each unit owner, each tenant and other invitee, and
296	each association shall be governed by, and shall comply with the
297	provisions of, this chapter, the declaration, the documents
298	creating the association, and the association bylaws and the
299	provisions thereof shall be deemed expressly incorporated into
300	any lease of a unit. Actions for damages or for injunctive
301	relief, or both, for failure to comply with these provisions may
302	be brought by the association or by a unit owner against:
303	(a) The association.
304	(b) A unit owner.
305	(c) Directors designated by the developer, for actions
306	taken by them prior to the time control of the association is
307	assumed by unit owners other than the developer.
308	(d) Any director who willfully and knowingly fails to
309	comply with these provisions.
310	(e) Any tenant leasing a unit, and any other invitee
311	occupying a unit.
312
313	The prevailing party in any such action or in any action in
314	which the purchaser claims a right of voidability based upon
315	contractual provisions as required in s. 718.503(1)(a) is
316	entitled to recover reasonable attorney's fees. A unit owner
317	prevailing in an action between the association and the unit
318	owner under this section, in addition to recovering his or her
319	reasonable attorney's fees, may recover additional amounts as
320	determined by the court to be necessary to reimburse the unit
321	owner for his or her share of assessments levied by the
322	association to fund its expenses of the litigation. This relief
323	does not exclude other remedies provided by law.Actions
324	arising under this subsection shall not be deemed to be actions
325	for specific performance.
326	Section 5. Subsection (2) of section 719.104, Florida
327	Statutes, is amended to read:
328	719.104 Cooperatives; access to units; records; financial
329	reports; assessments; purchase of leases.--
330	(2) OFFICIAL RECORDS.--
331	(a) From the inception of the association, the association
332	shall maintain a copy of each of the following, where
333	applicable, which shall constitute the official records of the
334	association:
335	1. The plans, permits, warranties, and other items
336	provided by the developer pursuant to s. 719.301(4).
337	2. A photocopy of the cooperative documents.
338	3. A copy of the current rules of the association.
339	4. A book or books containing the minutes of all meetings
340	of the association, of the board of directors, and of the unit
341	owners, which minutes shall be retained for a period of not less
342	than 7 years.
343	5. A current roster of all unit owners and their mailing
344	addresses, unit identifications, voting certifications, and, if
345	known, telephone numbers.
346	6. All current insurance policies of the association.
347	7. A current copy of any management agreement, lease, or
348	other contract to which the association is a party or under
349	which the association or the unit owners have an obligation or
350	responsibility.
351	8. Bills of sale or transfer for all property owned by the
352	association.
353	9. Accounting records for the association and separate
354	accounting records for each unit it operates, according to good
355	accounting practices. All accounting records shall be maintained
356	for a period of not less than 7 years. The accounting records
357	shall include, but not be limited to:
358	a. Accurate, itemized, and detailed records of all
359	receipts and expenditures.
360	b. A current account and a monthly, bimonthly, or
361	quarterly statement of the account for each unit designating the
362	name of the unit owner, the due date and amount of each
363	assessment, the amount paid upon the account, and the balance
364	due.
365	c. All audits, reviews, accounting statements, and
366	financial reports of the association.
367	d. All contracts for work to be performed. Bids for work
368	to be performed shall also be considered official records and
369	shall be maintained for a period of 1 year.
370	10. Ballots, sign-in sheets, voting proxies, and all other
371	papers relating to voting by unit owners, which shall be
372	maintained for a period of 1 year after the date of the
373	election, vote, or meeting to which the document relates.
374	11. All rental records where the association is acting as
375	agent for the rental of units.
376	12. A copy of the current question and answer sheet as
377	described in s. 719.504.
378	13. All other records of the association not specifically
379	included in the foregoing which are related to the operation of
380	the association.
381	(b) The official records of the association shall be
382	maintained within the state. The records of the association
383	shall be made available to a unit owner within 5 working days
384	after receipt of written request by the board or its designee.
385	This paragraph may be complied with by having a copy of the
386	official records available for inspection or copying on the
387	cooperative property.
388	(c) The official records of the association shall be open
389	to inspection by any association member or the authorized
390	representative of such member at all reasonable times. Failure
391	to permit inspection of the association records as provided
392	herein entitles any person prevailing in an enforcement action
393	to recover reasonable attorney's fees from the person in control
394	of the records who, directly or indirectly, knowingly denies
395	access to the records for inspection. The right to inspect the
396	records includes the right to make or obtain copies, at the
397	reasonable expense, if any, of the association member. The
398	association may adopt reasonable rules regarding the frequency,
399	time, location, notice, and manner of record inspections and
400	copying. The failure of an association to provide the records
401	within 10 working days after receipt of a written request
402	creates a rebuttable presumption that the association willfully
403	failed to comply with this paragraph. A unit owner who is denied
404	access to official records is entitled to the actual damages or
405	minimum damages for the association's willful failure to comply
406	with this paragraph. The minimum damages shall be $50 per
407	calendar day up to 10 days, the calculation to begin on the 11th
408	day after receipt of the written request. The association shall
409	maintain an adequate number of copies of the declaration,
410	articles of incorporation, bylaws, and rules, and all amendments
411	to each of the foregoing, as well as the question and answer
412	sheet provided for in s. 719.504, on the cooperative property to
413	ensure their availability to unit owners and prospective
414	purchasers, and may charge its actual costs for preparing and
415	furnishing these documents to those requesting the same.
416	Notwithstanding the provisions of this paragraph, the following
417	records shall not be accessible to unit owners:
418	1. A record that was prepared by an association attorney
419	or prepared at the attorney's express direction; that reflects a
420	mental impression, conclusion, litigation strategy, or legal
421	theory of the attorney or the association; or that was prepared
422	exclusively for civil or criminal litigation or for adversarial
423	administrative proceedings or in anticipation of imminent civil
424	or criminal litigation or imminent adversarial administrative
425	proceedings, until the conclusion of the litigation or
426	adversarial administrative proceedings.
427	2. Information obtained by an association in connection
428	with the approval of the lease, sale, or other transfer of a
429	unit.
430	3. Medical records of unit owners.
431	(d) The association or its authorized agent shall not be
432	required to provide a prospective purchaser or lienholder with
433	information about the cooperative or association other than the
434	information or documents required by this chapter to be made
435	available or disclosed.
436	1. If, for the convenience of the members, the association
437	elects to provide requested information not required by law to
438	be made available or disclosed to prospective purchasers or
439	lienholders, the association may do so, and the association and
440	its authorized agent shall be immune from suit by any person or
441	entity for information given in good faith if the association or
442	its authorized agent accompanies such information with a written
443	statement in substantially the following form:
444
445	The information contained herein, to the extent not
446	required to be provided by the Florida Cooperative
447	Act, is provided without warranty or certification of
448	any sort. Reliance on the accuracy of this
449	information, if provided in good faith, is at the sole
450	risk of the person or entity choosing to rely thereon.
451	You are encouraged to review original documentation
452	that may be available rather than relying on
453	summaries, compilations, statements of opinion, or
454	anecdotal information which may be the source of our
455	information. Florida law provides immunity from suit
456	for good faith information, even if it is later
457	determined to be inaccurate.
458
459	2. The association or its authorized agent shall be
460	entitled to charge a reasonable fee to the prospective
461	purchaser, lienholder, or the current unit owner for its time in
462	providing good faith responses to requests for information by or
463	on behalf of a prospective purchaser or lienholder, other than
464	that required by law, provided that such fee shall not exceed
465	$150 plus the reasonable cost of photocopying and any attorney’s
466	fees incurred by the association.
467	Section 6. Subsection (1) of section 719.303, Florida
468	Statutes, is amended to read:
469	719.303 Obligations of owners.--
470	(1) Each unit owner, each tenant and other invitee, and
471	each association shall be governed by, and shall comply with the
472	provisions of, this chapter, the cooperative documents, the
473	documents creating the association, and the association bylaws,
474	and the provisions thereof shall be deemed expressly
475	incorporated into any lease of a unit. Actions for damages or
476	for injunctive relief, or both, for failure to comply with these
477	provisions may be brought by the association or by a unit owner
478	against:
479	(a) The association.
480	(b) A unit owner.
481	(c) Directors designated by the developer, for actions
482	taken by them prior to the time control of the association is
483	assumed by unit owners other than the developer.
484	(d) Any director who willfully and knowingly fails to
485	comply with these provisions.
486	(e) Any tenant leasing a unit, and any other invitee
487	occupying a unit.
488
489	The prevailing party in any such action or in any action in
490	which the purchaser claims a right of voidability based upon
491	contractual provisions as required in s. 719.503(1)(a) is
492	entitled to recover reasonable attorney's fees. A unit owner
493	prevailing in an action between the association and the unit
494	owner under this section, in addition to recovering his or her
495	reasonable attorney's fees, may recover additional amounts as
496	determined by the court to be necessary to reimburse the unit
497	owner for his or her share of assessments levied by the
498	association to fund its expenses of the litigation. This relief
499	does not exclude other remedies provided by law.Actions
500	arising under this subsection shall not be deemed to be actions
501	for specific performance.
502	Section 7. Section 720.302, Florida Statutes, is amended
503	to read:
504	720.302 Purposes, scope, and application.--
505	(1) The purposes of ss. 720.301-720.312 are to give
506	statutory recognition to corporationsnot for profitthat
507	operate residential communities in this state, to provide
508	procedures for operating homeowners' associations, and to
509	protect the rights of association members without unduly
510	impairing the ability of such associations to perform their
511	functions.
512	(2) The Legislature recognizes that it is not in the best
513	interest of homeowners' associations or the individual
514	association members thereof to create or impose a bureau or
515	other agency of state government to regulate the affairs of
516	homeowners' associations. Further, the Legislature recognizes
517	that certain contract rights have been created for the benefit
518	of homeowners' associations and members thereof before the
519	effective date of this act and that ss. 720.301-720.312 are not
520	intended to impair such contract rights, including, but not
521	limited to, the rights of the developer to complete the
522	community as initially contemplated.
523	(3) Sections 720.301-720.312 do not apply to:
524	(a) A community that is composed of property primarily
525	intended for commercial, industrial, or other nonresidential
526	use; or
527	(b) The commercial or industrial parcels in a community
528	that contains both residential parcels and parcels intended for
529	commercial or industrial use.
530	(4) Sections 720.301-720.312 do not apply to any
531	association that is subject to regulation under chapter 718,
532	chapter 719, or chapter 721; or to any nonmandatory association
533	formed under chapter 723.
534	(5) Unless expressly stated to the contrary, corporations
535	not for profit that operate residential homeowners’ associations
536	in this state shall be governed by and subject to the provisions
537	of chapter 617. This provision is intended to clarify existing
538	law.
539	Section 8. This act shall take effect upon becoming a law.
540