Florida Senate - 2015                      CS for CS for SB 1172
       
       
        
       By the Committees on Judiciary; and Regulated Industries; and
       Senator Latvala
       
       
       
       
       590-03659-15                                          20151172c2
    1                        A bill to be entitled                      
    2         An act relating to termination of a condominium
    3         association; amending s. 718.117, F.S.; providing and
    4         revising procedures and requirements for termination
    5         of a condominium property; providing requirements for
    6         the rejection of a plan of termination; defining
    7         terms; providing applicability; providing and revising
    8         requirements relating to partial termination of a
    9         condominium property; authorizing a plan of
   10         termination to be withdrawn, modified, or amended
   11         under certain conditions; revising and providing
   12         requirements relating to the allocation of proceeds of
   13         the sale of condominium property; revising
   14         requirements relating to the right to contest a plan
   15         of termination; amending s. 718.1255, F.S.; revising
   16         the term “dispute”; providing an effective date.
   17          
   18  Be It Enacted by the Legislature of the State of Florida:
   19  
   20         Section 1. Subsections (3), (4), (9), (11), (12), and (16)
   21  of section 718.117, Florida Statutes, are amended to read:
   22         718.117 Termination of condominium.—
   23  (3) OPTIONAL TERMINATION.—Except as provided in subsection (2)
   24  or unless the declaration provides for a lower percentage, the
   25  condominium form of ownership may be terminated for all or a
   26  portion of the condominium property pursuant to a plan of
   27  termination approved by at least 80 percent of the total voting
   28  interests of the condominium if no more than 10 percent or more
   29  of the total voting interests of the condominium have rejected
   30  the plan of termination by negative vote or by providing written
   31  objections.
   32         (a) The termination of the condominium form of ownership is
   33  subject to the following conditions:
   34         1. The total voting interests of the condominium must
   35  include all voting interests for the purpose of considering a
   36  plan of termination. A voting interest of the condominium may
   37  not be suspended for any reason when voting on termination
   38  pursuant to this subsection.
   39         2. If 10 percent or more of the total voting interests of
   40  the condominium reject a plan of termination, a subsequent plan
   41  of termination pursuant to this subsection may not be considered
   42  for 18 months after the date of the rejection.
   43         (b) This subsection also does not apply to any condominium
   44  created pursuant to part VI of this chapter until 5 years after
   45  the recording of the declaration of condominium for the
   46  condominium unless there are no objections to the plan of
   47  termination This subsection does not apply to condominiums in
   48  which 75 percent or more of the units are timeshare units.
   49         (c) For purposes of this subsection, the term “bulk owner”
   50  means the single holder of such voting interests or an owner
   51  together with a related entity or entities that would be
   52  considered insiders, as defined in s. 726.102, holding such
   53  voting interests. If the condominium association is a
   54  residential association proposed for termination pursuant to
   55  this section and, at the time of recording the plan of
   56  termination, at least 80 percent of the total voting interests
   57  are owned by a bulk owner, the plan of termination is subject to
   58  the following conditions and limitations:
   59         1.If the former condominium units are offered for lease to
   60  the public after the termination, each unit owner in occupancy
   61  immediately before the date of recording of the plan of
   62  termination may lease his or her former unit and remain in
   63  possession of the unit for 12 months after the effective date of
   64  the termination on the same terms as similar unit types within
   65  the property are being offered to the public. In order to obtain
   66  a lease and exercise the right to retain exclusive possession of
   67  the unit owner’s former unit, the unit owner must make a written
   68  request to the termination trustee to rent the former unit
   69  within 90 days after the date the plan of termination is
   70  recorded. Any unit owner who fails to timely make such written
   71  request and sign a lease within 15 days after being presented
   72  with a lease is deemed to have waived his or her right to retain
   73  possession of his or her former unit and is required to vacate
   74  the former unit upon the effective date of the termination,
   75  unless otherwise provided in the plan of termination.
   76         2.Any former unit owner whose unit was granted homestead
   77  exemption status by the applicable county property appraiser as
   78  of the date of the recording of the plan of termination shall be
   79  paid a relocation payment in an amount equal to 1 percent of the
   80  termination proceeds allocated to the owner’s former unit. Any
   81  relocation payment payable under this subparagraph shall be paid
   82  by the single entity or related entities owning at least 80
   83  percent of the total voting interests. Such relocation payment
   84  is in addition to the termination proceeds for such owner’s
   85  former unit and shall be paid no later than 10 days after the
   86  former unit owner vacates his or her former unit.
   87         3.All unit owners other than the bulk owner shall be
   88  compensated at least 100 percent of the fair market value of
   89  their respective units. The fair market value shall be
   90  determined by an independent appraiser, selected by the
   91  termination trustee, as of a date that is no earlier than 90
   92  days before the date that the plan of termination is recorded.
   93  For original purchasers from the developer who dissent or object
   94  to the plan of termination, the fair market value for the unit
   95  owner dissenting or objecting may not be less than the original
   96  purchase price paid for the unit. For purposes of this
   97  subparagraph, the term “fair market value” means the price of a
   98  unit that a seller is willing to accept and a buyer is willing
   99  to pay on the open market in an arms-length transaction based on
  100  similar units sold in other condominiums, including units sold
  101  in bulk purchases but excluding units sold at wholesale or
  102  distressed prices. The purchase price of units acquired in bulk
  103  following a bankruptcy or foreclosure may not be considered for
  104  purposes of determining fair market value.
  105         4.The plan of termination must provide the manner by which
  106  each first mortgage on a unit will be satisfied so that each
  107  unit owner’s obligation under a first mortgage is satisfied in
  108  full at the time the plan of termination is implemented.
  109         5.Before presenting a plan of termination to the unit
  110  owners for consideration pursuant to this paragraph, the plan
  111  must include the following written disclosures in a sworn
  112  statement:
  113         a.The identity of any person or entity that owns or
  114  controls 50 percent or more of the units in the condominium and,
  115  if the units are owned by an artificial entity or entities, a
  116  disclosure of the natural person or persons who, directly or
  117  indirectly, manage or control the entity or entities and the
  118  natural person or persons who, directly or indirectly, own or
  119  control 20 percent or more of the artificial entity or entities
  120  that constitute the bulk owner.
  121         b.The units acquired by any bulk owner, the date each unit
  122  was acquired, and the total amount of compensation paid to each
  123  prior unit owner by the bulk owner, regardless of whether
  124  attributed to the purchase price of the unit.
  125         c.The relationship of any board member to the bulk owner
  126  or any person or entity affiliated with the bulk owner subject
  127  to disclosure pursuant to this subparagraph.
  128         (d)If the members of the board of administration are
  129  elected by the bulk owner, unit owners other than the bulk owner
  130  may elect at least one-third of the members of the board of
  131  administration before the approval of any plan of termination.
  132         (4) EXEMPTION.—A plan of termination is not an amendment
  133  subject to s. 718.110(4). In a partial termination, a plan of
  134  termination is not an amendment subject to s. 718.110(4) if the
  135  ownership share of the common elements of a surviving unit in
  136  the condominium remains in the same proportion to the surviving
  137  units as it was before the partial termination. An amendment to
  138  a declaration to conform the declaration to this section is not
  139  an amendment subject to s. 718.110(4) and may be approved by the
  140  lesser of 80 percent of the voting interests or the percentage
  141  of the voting interests required to amend the declaration.
  142         (9) PLAN OF TERMINATION.—The plan of termination must be a
  143  written document executed in the same manner as a deed by unit
  144  owners having the requisite percentage of voting interests to
  145  approve the plan and by the termination trustee. A copy of the
  146  proposed plan of termination shall be given to all unit owners,
  147  in the same manner as for notice of an annual meeting, at least
  148  14 days prior to the meeting at which the plan of termination is
  149  to be voted upon or prior to or simultaneously with the
  150  distribution of the solicitation seeking execution of the plan
  151  of termination or written consent to or joinder in the plan. A
  152  unit owner may document assent to the plan by executing the plan
  153  or by consent to or joinder in the plan in the manner of a deed.
  154  A plan of termination and the consents or joinders of unit
  155  owners and, if required, consents or joinders of mortgagees must
  156  be recorded in the public records of each county in which any
  157  portion of the condominium is located. The plan is effective
  158  only upon recordation or at a later date specified in the plan.
  159  If the plan of termination fails to receive the required
  160  approval, the plan shall not be recorded and a new attempt to
  161  terminate the condominium may not be proposed at a meeting or by
  162  solicitation for joinder and consent for 180 days after the date
  163  that such failed plan of termination was first given to all unit
  164  owners in the manner as provided in this subsection.
  165         (a) If the plan of termination is voted on at a meeting of
  166  the unit owners called in accordance with this subsection, any
  167  unit owner desiring to reject the plan must do so by either
  168  voting to reject the plan in person or by proxy, or by
  169  delivering a written rejection to the association before or at
  170  the meeting.
  171         (b) If the plan of termination is approved by written
  172  consent or joinder without a meeting of the unit owners, any
  173  unit owner desiring to object to the plan must deliver a written
  174  objection to the association within 20 days after the date that
  175  the association notifies the nonconsenting owners, in the manner
  176  provided in paragraph (15)(a), that the plan of termination has
  177  been approved by written action in lieu of a unit owner meeting.
  178         (11) PLAN OF TERMINATION; OPTIONAL PROVISIONS; CONDITIONAL
  179  TERMINATION; WITHDRAWAL; ERRORS.—
  180         (a) Unless the plan of termination expressly authorizes a
  181  may provide that each unit owner or other person to retain
  182  retains the exclusive right to possess that of possession to the
  183  portion of the real estate which formerly constituted the unit
  184  after termination or to use the common elements of the
  185  condominium after termination, all such rights in the unit and
  186  common elements automatically terminate on the effective date of
  187  termination. Unless the plan expressly provides otherwise, all
  188  leases, occupancy agreements, subleases, licenses, or other
  189  agreements for the use or occupancy of any unit or common
  190  elements of the condominium automatically terminate on the
  191  effective date of termination. If the plan expressly authorizes
  192  a unit owner or other person to retain exclusive right of
  193  possession for that portion of the real estate which formerly
  194  constituted the unit or to use the common elements of the
  195  condominium after termination, the plan must specify the terms
  196  and if the plan specifies the conditions of possession. In a
  197  partial termination, the plan of termination as specified in
  198  subsection (10) must also identify the units that survive the
  199  partial termination and provide that such units remain in the
  200  condominium form of ownership pursuant to an amendment to the
  201  declaration of condominium or an amended and restated
  202  declaration. In a partial termination, title to the surviving
  203  units and common elements that remain part of the condominium
  204  property specified in the plan of termination remain vested in
  205  the ownership shown in the public records and do not vest in the
  206  termination trustee.
  207         (b) In a conditional termination, the plan must specify the
  208  conditions for termination. A conditional plan does not vest
  209  title in the termination trustee until the plan and a
  210  certificate executed by the association with the formalities of
  211  a deed, confirming that the conditions in the conditional plan
  212  have been satisfied or waived by the requisite percentage of the
  213  voting interests, have been recorded. In a partial termination,
  214  the plan does not vest title to the surviving units or common
  215  elements that remain part of the condominium property in the
  216  termination trustee.
  217         (c) Unless otherwise provided in the plan of termination,
  218  at any time before the sale of the condominium property, a plan
  219  may be withdrawn or modified by the affirmative vote or written
  220  agreement of at least the same percentage of voting interests in
  221  the condominium as that which was required for the initial
  222  approval of the plan.
  223         (d) Upon the discovery of a scrivener’s error in the plan
  224  of termination, the termination trustee may record an amended
  225  plan or an amendment to the plan for the purpose of correcting
  226  the error, and the amended plan or amendment to the plan must be
  227  executed by the termination trustee in the same manner as
  228  required for the execution of a deed.
  229         (12) ALLOCATION OF PROCEEDS OF SALE OF CONDOMINIUM
  230  PROPERTY.—
  231         (a) Unless the declaration expressly provides for the
  232  allocation of the proceeds of sale of condominium property, the
  233  plan of termination may require separate valuations for must
  234  first apportion the proceeds between the aggregate value of all
  235  units and the value of the common elements. However, in the
  236  absence of such provision, it is presumed that the common
  237  elements have no independent value but rather that their value
  238  is incorporated into the valuation of the units based on their
  239  respective fair market values immediately before the
  240  termination, as determined by one or more independent appraisers
  241  selected by the association or termination trustee. In a partial
  242  termination, the aggregate values of the units and common
  243  elements that are being terminated must be separately
  244  determined, and the plan of termination must specify the
  245  allocation of the proceeds of sale for the units and common
  246  elements being terminated.
  247         (b) The portion of proceeds allocated to the units shall be
  248  further apportioned among the individual units. The
  249  apportionment is deemed fair and reasonable if it is so
  250  determined by the unit owners, who may approve the plan of
  251  termination by any of the following methods:
  252         1. The respective values of the units based on the fair
  253  market values of the units immediately before the termination,
  254  as determined by one or more independent appraisers selected by
  255  the association or termination trustee;
  256         2. The respective values of the units based on the most
  257  recent market value of the units before the termination, as
  258  provided in the county property appraiser’s records; or
  259         3. The respective interests of the units in the common
  260  elements specified in the declaration immediately before the
  261  termination.
  262         (c) The methods of apportionment in paragraph (b) do not
  263  prohibit any other method of apportioning the proceeds of sale
  264  allocated to the units or any other method of valuing the units
  265  agreed upon in the plan of termination. Any The portion of the
  266  proceeds separately allocated to the common elements shall be
  267  apportioned among the units based upon their respective
  268  interests in the common elements as provided in the declaration.
  269         (d) Liens that encumber a unit shall, unless otherwise
  270  provided in the plan of termination, be transferred to the
  271  proceeds of sale of the condominium property and the proceeds of
  272  sale or other distribution of association property, common
  273  surplus, or other association assets attributable to such unit
  274  in their same priority. In a partial termination, liens that
  275  encumber a unit being terminated must be transferred to the
  276  proceeds of sale of that portion of the condominium property
  277  being terminated which are attributable to such unit. The
  278  proceeds of any sale of condominium property pursuant to a plan
  279  of termination may not be deemed to be common surplus or
  280  association property. The holder of a lien that encumbers a unit
  281  at the time of recording a plan must, within 30 days after the
  282  written request from the termination trustee, deliver a
  283  statement to the termination trustee confirming the outstanding
  284  amount of any obligations of the unit owner secured by the lien.
  285         (e) The termination trustee may setoff against, and reduce
  286  the share of, the termination proceeds allocated to a unit by
  287  the following amounts, which may include attorney fees and
  288  costs:
  289         1. All unpaid assessments, taxes, late fees, interest,
  290  fines, charges, and other amounts due and owing to the
  291  association associated with the unit, its owner, or the owner’s
  292  family members, guests, tenants, occupants, licensees, invitees,
  293  or other persons.
  294         2. All costs of clearing title to the owner’s unit,
  295  including, but not limited to, locating lienors, obtaining
  296  statements from such lienors confirming the outstanding amount
  297  of any obligations of the unit owner, and paying all mortgages
  298  and other liens, judgments, and encumbrances and filing suit to
  299  quiet title or remove title defects.
  300         3. All costs of removing the owner or the owner’s family
  301  members, guests, tenants, occupants, licensees, invitees, or
  302  other persons from the unit in the event such persons fail to
  303  vacate a unit as required by the plan.
  304         4. All costs arising from, or related to, any breach of the
  305  plan by the owner or the owner’s family members, guests,
  306  tenants, occupants, licensees, invitees, or other persons.
  307         5. All costs arising out of, or related to, the removal and
  308  storage of all personal property remaining in a unit, other than
  309  personal property owned by the association, so that the unit may
  310  be delivered vacant and clear of the owner or the owner’s family
  311  members, guests, tenants, occupants, licensees, invitees, or
  312  other persons as required by the plan.
  313         6. All costs arising out of, or related to, the appointment
  314  and activities of a receiver or attorney ad litem acting for the
  315  owner in the event that the owner is unable to be located.
  316         (16) RIGHT TO CONTEST.—A unit owner or lienor may contest a
  317  plan of termination by initiating a petition for mandatory
  318  nonbinding arbitration summary procedure pursuant to s. 718.1255
  319  s. 51.011 within 90 days after the date the plan is recorded. A
  320  unit owner or lienor may only contest the fairness and
  321  reasonableness of the apportionment of the proceeds from the
  322  sale among the unit owners, that the first mortgages of all unit
  323  owners other than the bulk owner have not or will not be fully
  324  satisfied at the time of termination as required by subsection
  325  (3), or that the required vote to approve the plan was not
  326  obtained. A unit owner or lienor who does not contest the plan
  327  within the 90-day period is barred from asserting or prosecuting
  328  a claim against the association, the termination trustee, any
  329  unit owner, or any successor in interest to the condominium
  330  property. In an action contesting a plan of termination, the
  331  person contesting the plan has the burden of pleading and
  332  proving that the apportionment of the proceeds from the sale
  333  among the unit owners was not fair and reasonable or that the
  334  required vote was not obtained. The apportionment of sale
  335  proceeds is presumed fair and reasonable if it was determined
  336  pursuant to the methods prescribed in subsection (12). The
  337  arbitrator court shall determine the rights and interests of the
  338  parties in the apportionment of the sale proceeds and order the
  339  plan of termination to be implemented if it is fair and
  340  reasonable. If the arbitrator court determines that the
  341  apportionment of sale proceeds plan of termination is not fair
  342  and reasonable, the arbitrator court may void the plan or may
  343  modify the plan to apportion the proceeds in a fair and
  344  reasonable manner pursuant to this section based upon the
  345  proceedings and order the modified plan of termination to be
  346  implemented. If the arbitrator determines that the plan was not
  347  properly approved, or that the procedures to adopt the plan were
  348  not properly followed, it may void the plan or grant other
  349  relief it deems just and proper. The arbitrator shall
  350  automatically void the plan upon a finding that any of the
  351  disclosures required in subparagraph (3)(d)4. are omitted,
  352  misleading, incomplete, or inaccurate. Any challenge to a plan,
  353  other than a challenge that the required vote was not obtained,
  354  does not affect title to the condominium property or the vesting
  355  of the condominium property in the trustee, but shall only be a
  356  claim against the proceeds of the plan. In any such action, the
  357  prevailing party shall recover reasonable attorney attorney’s
  358  fees and costs.
  359         Section 2. Subsection (1) of section 718.1255, Florida
  360  Statutes, is amended to read:
  361         718.1255 Alternative dispute resolution; voluntary
  362  mediation; mandatory nonbinding arbitration; legislative
  363  findings.—
  364         (1) DEFINITIONS.—As used in this section, the term
  365  “dispute” means any disagreement between two or more parties
  366  that involves:
  367         (a) The authority of the board of directors, under this
  368  chapter or association document to:
  369         1. Require any owner to take any action, or not to take any
  370  action, involving that owner’s unit or the appurtenances
  371  thereto.
  372         2. Alter or add to a common area or element.
  373         (b) The failure of a governing body, when required by this
  374  chapter or an association document, to:
  375         1. Properly conduct elections.
  376         2. Give adequate notice of meetings or other actions.
  377         3. Properly conduct meetings.
  378         4. Allow inspection of books and records.
  379         (c)A plan of termination pursuant to s. 718.117.
  380  
  381  “Dispute” does not include any disagreement that primarily
  382  involves: title to any unit or common element; the
  383  interpretation or enforcement of any warranty; the levy of a fee
  384  or assessment, or the collection of an assessment levied against
  385  a party; the eviction or other removal of a tenant from a unit;
  386  alleged breaches of fiduciary duty by one or more directors; or
  387  claims for damages to a unit based upon the alleged failure of
  388  the association to maintain the common elements or condominium
  389  property.
  390         Section 3. This act shall take effect July 1, 2015.