| 1 | A bill to be entitled |
| 2 | An act relating to Home Court Advantage Pilot Program; |
| 3 | providing legislative intent; providing definitions; |
| 4 | requesting the chief judges of the Thirteenth and Sixth |
| 5 | Judicial Circuits to adopt certain rules and procedures |
| 6 | for the establishment of the pilot program in Hillsborough |
| 7 | County and Pinellas County, respectively, for the purpose |
| 8 | of resolving disputes relating to deed restrictions or |
| 9 | covenants in deed-restricted communities; requiring a |
| 10 | report; providing for jurisdiction, filing and complaint |
| 11 | procedures, appeals, qualifications, compensation and |
| 12 | terms of service, and code of ethics; providing for |
| 13 | nonseverability; providing an effective date. |
| 14 |
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| 15 | Be It Enacted by the Legislature of the State of Florida: |
| 16 |
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| 17 | Section 1. Legislative intent.--It is the intent of the |
| 18 | Legislature to establish the Home Court Advantage Pilot Program |
| 19 | as a pilot program in Hillsborough and Pinellas Counties for a |
| 20 | period of 1 year. The purpose of the Home Court Advantage Pilot |
| 21 | Program is to establish an inexpensive, expedient, simplified |
| 22 | court procedure as an independent venue for ownership or |
| 23 | management entities in deed-restricted communities to resolve |
| 24 | disputes relating to deed restrictions or covenants informally |
| 25 | without the restrictions and procedures required for formal |
| 26 | actions in circuit court. The Home Court Advantage Pilot Program |
| 27 | shall be implemented and administered by the chief judge of the |
| 28 | Thirteenth Judicial Circuit in Hillsborough County and the chief |
| 29 | judge of the Sixth Judicial Circuit in Pinellas County, subject |
| 30 | to the supervision of the Supreme Court. |
| 31 | Section 2. Definitions.-- |
| 32 | (1) "Community association" has the same meaning as |
| 33 | provided in s. 468.431(1), Florida Statutes. |
| 34 | (2) "Community association manager" has the same meaning |
| 35 | as provided in s. 468.431(3), Florida Statutes. |
| 36 | (3) "Complainant" means a party filing a complaint in home |
| 37 | court. |
| 38 | (4) "Complaint" means an allegation by: |
| 39 | (a) A homeowners' association, condominium unit owners' |
| 40 | association, cooperative association, community development |
| 41 | district, or civic association that a property owner in a deed- |
| 42 | restricted community is violating one or more restrictions that |
| 43 | apply to the property; or |
| 44 | (b) A homeowner, condominium unit owner, member of a |
| 45 | cooperative, resident of a community development district, or |
| 46 | property owner in any deed-restricted community in which the |
| 47 | respective association or district is selectively enforcing a |
| 48 | deed restriction or covenant or is improperly or unlawfully |
| 49 | seeking to enforce a deed restriction or covenant. |
| 50 | (5) "Deed-restricted community" means a residential |
| 51 | community, condominium, cooperative, or community development |
| 52 | district in which the properties in the community are subject to |
| 53 | limitations or restrictions on or covenants restricting the use, |
| 54 | design, or operation of properties in the community. |
| 55 | (6) "Defendant" means a party against whom a complaint is |
| 56 | filed in home court. |
| 57 | Section 3. Objectives.--The chief judges of the Thirteenth |
| 58 | and Sixth Judicial Circuits may adopt rules and procedures for |
| 59 | the establishment and operation of the Home Court Advantage |
| 60 | Pilot Program in Hillsborough County and Pinellas County, |
| 61 | respectively. The chief judges shall report to the Supreme Court |
| 62 | at the end of the program an analysis of the operation and |
| 63 | results of the program. The Chief Justice of the Supreme Court |
| 64 | shall review the reports and make determinations and |
| 65 | recommendations to the Legislature by February 1, 2009, on the |
| 66 | feasibility of establishing a statewide program and provide |
| 67 | copies of the reports to the Speaker of the House of |
| 68 | Representatives, the President of the Senate, and the minority |
| 69 | leader of each house of the Legislature. |
| 70 | Section 4. Jurisdiction; limitations.-- |
| 71 | (1) Home court magistrates may be empowered to accept |
| 72 | complaints about and decide the reasonableness of any |
| 73 | restriction imposed pursuant to a deed to real property or fine |
| 74 | imposed for a failure to comply with a deed restriction and may |
| 75 | be empowered to issue orders, impose fines, and authorize the |
| 76 | imposition of a lien on real property in the same manner as a |
| 77 | circuit court judge under the laws, rules, and procedures |
| 78 | presently existing or as subsequently amended, except that home |
| 79 | court magistrates may not: |
| 80 | (a) Hold a party in contempt of court but may file a |
| 81 | motion for order of contempt with the appropriate state circuit |
| 82 | court judge; or |
| 83 | (b) Hear a case involving any dispute other than a deed |
| 84 | restriction. |
| 85 | (2) This section does not prohibit a circuit court judge |
| 86 | from exercising concurrent jurisdiction with a home court |
| 87 | magistrate. |
| 88 | Section 5. Filing and complaint procedures.-- |
| 89 | (1) Any party may file, on its own behalf or through an |
| 90 | attorney appointed by a party as attorney in fact, a complaint |
| 91 | in home court alleging a violation of a deed restriction or |
| 92 | covenant and seeking enforcement of the restriction or covenant |
| 93 | or alleging unlawful enforcement of a deed restriction or |
| 94 | covenant and seeking an injunction against such unlawful |
| 95 | enforcement. A property owner in a deed-restricted community for |
| 96 | which there is a community association may appoint the community |
| 97 | association as his or her attorney in fact, pursuant to the |
| 98 | provisions of s. 709.08, Florida Statutes, for the purposes of |
| 99 | filing an action against another property owner in the deed- |
| 100 | restricted community, or a member or officer of a homeowners' |
| 101 | association of the community if there is one, seeking |
| 102 | enforcement of a restriction or covenant or alleging unlawful |
| 103 | enforcement of a restriction or covenant. The complainant shall |
| 104 | pay a $75 filing fee to the home court. The complaint shall |
| 105 | contain a completed checklist specifying: |
| 106 | (a) What restriction or covenant is being violated. |
| 107 | (b) When the violation occurred or began and if the |
| 108 | violation is continuing. |
| 109 | (c) Whether the party in violation of the restriction or |
| 110 | covenant was provided notice of the violation and, if so: |
| 111 | 1. When the notice was provided. |
| 112 | 2. If the notice was in writing. |
| 113 | (d) Whether the party in violation was provided an |
| 114 | opportunity to comply with the restriction or covenant or cure |
| 115 | the violation. |
| 116 | (e) Whether the attempt to enforce the restriction or |
| 117 | covenant was selectively enforced or improper. |
| 118 | (f) Whether there were any special considerations relating |
| 119 | to the failure to comply with the restriction or covenant. |
| 120 | (g) The remedy being sought against the party in |
| 121 | violation. |
| 122 | (2) Upon filing proof of service of the complaint, a home |
| 123 | court magistrate shall issue an order requiring the complainant |
| 124 | and the defendant to appear for a final hearing within 60 days |
| 125 | after receipt of service of the complaint. The defendant shall |
| 126 | provide to the complainant a copy of the defendant's response to |
| 127 | the notice to comply at least 10 days prior to the final |
| 128 | hearing. |
| 129 | (3)(a) Within 30 days after the home court magistrate |
| 130 | issues an order requiring the final hearing, the parties shall |
| 131 | be required to attend mediation conducted pursuant to the rules |
| 132 | of practice and procedure adopted by the Supreme Court pursuant |
| 133 | to s. 44.102, Florida Statutes. |
| 134 | (b) The parties to the mediation shall provide copies of |
| 135 | the documents referenced in the checklist in subsection (1). |
| 136 | (c) Upon the showing of good cause, the home court |
| 137 | magistrate may continue the hearing to require the parties to |
| 138 | produce additional information and documentation. The parties |
| 139 | shall provide any additional information or documentation |
| 140 | required by the home court magistrate within 15 days after the |
| 141 | home court magistrate's request. |
| 142 | (d) The home court magistrate shall make findings of |
| 143 | reasonableness of the restriction or covenant and any fines to |
| 144 | be imposed under the restriction. The home court magistrate |
| 145 | shall rule on the validity of the restriction and the fine |
| 146 | imposed by the community association. |
| 147 | (e) The purpose of the hearing shall be the issuance of an |
| 148 | order by the home court magistrate imposing a fine on the party |
| 149 | in violation, compelling the party in violation to comply with |
| 150 | the restriction, and enjoining the party in violation from |
| 151 | continuing the violation. The party in violation shall have 30 |
| 152 | days to comply with the order unless good cause is shown to the |
| 153 | home court magistrate why a longer period should be allowed. |
| 154 | (f) The maximum fine the home court magistrate may impose |
| 155 | is the fine alleged by the party bringing the complaint. The |
| 156 | home court magistrate may reduce the fine. The fine shall be |
| 157 | paid to and retained by the home court program. If the action |
| 158 | for compliance is for dues or special assessments, the amount of |
| 159 | the dues or special assessments shall be paid to the community |
| 160 | association, minus 10 percent of such amount to be retained by |
| 161 | the home court program for purposes of administering the |
| 162 | program. |
| 163 | (4) If the party in violation does not comply with the |
| 164 | home court magistrate's order within 30 days after the order is |
| 165 | issued and, prior to the expiration of the 30-day period, good |
| 166 | cause has not been shown to the home court magistrate for |
| 167 | extending the period, or within the period of an extension of |
| 168 | the 30-day period if good cause has been shown to the home court |
| 169 | magistrate for extending the period and the home court |
| 170 | magistrate grants an extension, and the violation of the deed |
| 171 | restriction or covenant is monetary, notwithstanding the |
| 172 | limitations of chapter 713, Florida Statutes, s. 720.305, |
| 173 | Florida Statutes, or any other provision of law restricting the |
| 174 | perfecting of a lien on real property, the complainant may file |
| 175 | a lien to be placed upon the property for all amounts included |
| 176 | in the home court magistrate's order plus filing fees and costs |
| 177 | for bringing the action. |
| 178 | (5)(a) Upon application to the home court by a party to |
| 179 | the mediation or the mediator, a home court magistrate, in the |
| 180 | course of his or her jurisdiction, may issue subpoenas for the |
| 181 | attendance of necessary and material witnesses and for the |
| 182 | production of books, records, documents, and other evidence and |
| 183 | may administer oaths. Subpoenas shall be served and enforced in |
| 184 | the manner provided by law for the service and enforcement of |
| 185 | subpoenas in a civil action. A party or mediator applying to the |
| 186 | home court for issuance of a subpoena shall provide to the court |
| 187 | a separate envelope for each person the party or mediator |
| 188 | requests the home court magistrate to subpoena. The envelope |
| 189 | shall be addressed to the person and have the postage paid for |
| 190 | certified, return receipt requested, mail. The home court |
| 191 | magistrate shall mail the subpoena to the person subject to the |
| 192 | subpoena. |
| 193 | (b) Upon application of a party to the mediation and for |
| 194 | use as evidence, the mediator, in the course of his or her |
| 195 | jurisdiction, may permit a deposition to be taken of a witness |
| 196 | who cannot be subpoenaed or is unable to attend the mediation in |
| 197 | the manner and upon the terms designated by the mediator. All |
| 198 | provisions of law compelling a person under subpoena to testify |
| 199 | apply to the deposition. |
| 200 | (6) This section does not limit the rights of the parties |
| 201 | to seek injunctive relief in circuit court to compel compliance. |
| 202 | Section 6. Appeals.--An order of a home court magistrate |
| 203 | may be appealed, under the rules of court, to the circuit court. |
| 204 | The appeal shall be based upon the record of the hearing before |
| 205 | the home court magistrate and shall not be a hearing de novo. |
| 206 | The appellant is responsible for producing the record of the |
| 207 | hearing beyond that which normally results from the home court |
| 208 | hearing process. |
| 209 | Section 7. Qualifications.--An applicant for the position |
| 210 | of home court magistrate shall be a member in good standing of |
| 211 | The Florida Bar with at least 5 years of experience in |
| 212 | litigation actions involving enforcement of deed restrictions or |
| 213 | covenants or be a community association manager licensed under |
| 214 | s. 468.433, Florida Statutes. |
| 215 | Section 8. Compensation; terms of service.--A home court |
| 216 | magistrate is an independent contractor and shall serve without |
| 217 | compensation and at the pleasure of the chief judge of the |
| 218 | judicial circuit in which he or she is to hear cases. |
| 219 | Section 9. Code of ethics.--A home court magistrate is |
| 220 | subject to the Code of Ethics for Arbitrators in Commercial |
| 221 | Disputes published by the American Arbitration Association or |
| 222 | the standards and procedures for professional conduct and |
| 223 | discipline for mediators and arbitrators established by the |
| 224 | Supreme Court pursuant to s. 44.106, Florida Statutes. A home |
| 225 | court magistrate is not subject to the Judicial Code of Ethics, |
| 226 | except a home court magistrate shall avoid practices or |
| 227 | occupations that would constitute a conflict of interest or give |
| 228 | the appearance of impropriety. Whether serving full time or part |
| 229 | time, a home court magistrate is prohibited from representing |
| 230 | clients or practicing before any other home court or from |
| 231 | representing any client appealing the decision of any other home |
| 232 | court magistrate. A home court magistrate appointed under |
| 233 | section 1 has judicial immunity in the same manner and to the |
| 234 | same extent as judges. |
| 235 | Section 10. Nonseverability.--If the provisions of section |
| 236 | 4 authorizing home court magistrates to impose sanctions are |
| 237 | found to be unconstitutional by the Supreme Court, the home |
| 238 | court magistrates shall have no further jurisdiction over civil |
| 239 | infractions. |
| 240 | Section 11. This act shall take effect July 1, 2007. |