Florida Senate - 2016                              CS for SB 826
       
       
        
       By the Committee on Community Affairs; and Senator Latvala
       
       578-02622-16                                           2016826c1
    1                        A bill to be entitled                      
    2         An act relating to mobile homes; amending s. 723.006,
    3         F.S.; revising certain notice requirements for written
    4         complaints; requiring the Division of Florida
    5         Condominiums, Timeshares, and Mobile Homes to adopt
    6         rules to implement board member training requirements;
    7         providing notice and requirements of such rules;
    8         amending s. 723.031, F.S.; authorizing a mobile home
    9         park owner to pass on non-ad valorem assessments to a
   10         tenant under certain circumstances; providing that a
   11         mobile home park owner is deemed to have disclosed the
   12         passing on of certain taxes and assessments under
   13         certain circumstances; requiring the non-ad valorem
   14         assessments to be a part of the lot rental amount;
   15         requiring that a renewed rental agreement remain under
   16         the same terms unless certain notice is provided;
   17         amending s. 723.059, F.S.; authorizing a mobile home
   18         purchaser to cancel or rescind the contract to
   19         purchase under certain circumstances; amending s.
   20         723.075, F.S.; revising the rights that mobile home
   21         owners exercise if they form an association;
   22         authorizing mobile home owners to become members upon
   23         incorporation of the association; defining the terms
   24         “member” and “shareholder”; deleting provisions
   25         relating to memberships of successors to home owners;
   26         amending s. 723.078, F.S.; specifying voting
   27         requirements for homeowners’ associations; specifying
   28         the requirements for a majority of votes; authorizing
   29         members to vote by secret ballot and absentee ballot;
   30         prohibiting the tape recording or videotaping of
   31         meetings between the board of directors or its
   32         committees and the park owner; amending s. 723.0781,
   33         F.S.; providing a date by which certain provisions are
   34         effective; providing that board members may not be
   35         considered in violation of such provisions until after
   36         a specified date; providing an effective date.
   37          
   38  Be It Enacted by the Legislature of the State of Florida:
   39  
   40         Section 1. Subsection (6) of section 723.006, Florida
   41  Statutes, is amended, and subsection (15) is added to that
   42  section, to read:
   43         723.006 Powers and duties of division.—In performing its
   44  duties, the division has the following powers and duties:
   45         (6) With regard to any written complaint alleging a
   46  violation of any provision of this chapter or any rule adopted
   47  promulgated pursuant thereto, the division shall, within 30 days
   48  after receipt of a written complaint, periodically notify, in
   49  writing, the person who filed the complaint of the status of the
   50  complaint. Thereafter, the division shall notify the complainant
   51  of the status of the investigation within 90 days after receipt
   52  of the written complaint. Upon completion of the investigation,
   53  the division investigation, whether probable cause has been
   54  found, and the status of any administrative action, civil
   55  action, or appellate action, and if the division has found that
   56  probable cause exists, it shall notify, in writing, the
   57  complainant and the party complained against of the results of
   58  the investigation and disposition of the complaint.
   59         (15) The division shall adopt rules to implement the board
   60  member training requirements for educational programs as
   61  provided in this chapter. The Department of Business and
   62  Professional Regulation shall publish a notice of proposed rule
   63  pursuant to s. 120.54(3)(a) by October 1, 2016. Such rules shall
   64  include the requirements for content and notice of the board
   65  member training program to assure that providers meet minimum
   66  training requirements.
   67         Section 2. Subsection (5) of section 723.031, Florida
   68  Statutes, is amended to read:
   69         723.031 Mobile home lot rental agreements.—
   70         (5) The rental agreement shall contain the lot rental
   71  amount and services included. An increase in lot rental amount
   72  upon expiration of the term of the lot rental agreement shall be
   73  in accordance with ss. 723.033 and 723.037 or s. 723.059(4),
   74  whichever is applicable, provided that, pursuant to s.
   75  723.059(4), the amount of the lot rental increase is disclosed
   76  and agreed to by the purchaser, in writing. An increase in lot
   77  rental amount shall not be arbitrary or discriminatory between
   78  similarly situated tenants in the park. A No lot rental amount
   79  may not be increased during the term of the lot rental
   80  agreement, except:
   81         (a) When the manner of the increase is disclosed in a lot
   82  rental agreement with a term exceeding 12 months and which
   83  provides for such increases not more frequently than annually.
   84         (b) For pass-through charges as defined in s. 723.003.
   85         (c) That a no charge may not be collected which that
   86  results in payment of money for sums previously collected as
   87  part of the lot rental amount. The provisions hereof
   88  notwithstanding, the mobile home park owner may pass on, at any
   89  time during the term of the lot rental agreement, ad valorem
   90  property taxes, non-ad valorem assessments, and utility charges,
   91  or increases of either, provided that the ad valorem property
   92  taxes, non-ad valorem assessments, and the utility charges are
   93  not otherwise being collected in the remainder of the lot rental
   94  amount and provided further that the passing on of such ad
   95  valorem taxes, non-ad valorem assessments, or utility charges,
   96  or increases of either, was disclosed prior to tenancy, was
   97  being passed on as a matter of custom between the mobile home
   98  park owner and the mobile home owner, or such passing on was
   99  authorized by law. A park owner is deemed to have disclosed the
  100  passing on of ad valorem property taxes and non-ad valorem
  101  assessments if ad valorem property taxes or non-ad valorem
  102  assessments were disclosed as a factor for increasing the lot
  103  rental amount in the prospectus or rental agreement. Such ad
  104  valorem taxes, non-ad valorem assessments, and utility charges
  105  shall be a part of the lot rental amount as defined by this
  106  chapter. The term “non-ad valorem assessments” has the same
  107  meaning as provided in s. 197.3632(1)(d). Other provisions of
  108  this chapter notwithstanding, pass-on charges may be passed on
  109  only within 1 year of the date a mobile home park owner remits
  110  payment of the charge. A mobile home park owner is prohibited
  111  from passing on any fine, interest, fee, or increase in a charge
  112  resulting from a park owner’s payment of the charge after the
  113  date such charges become delinquent. Nothing herein shall
  114  prohibit a park owner and a homeowner from mutually agreeing to
  115  an alternative manner of payment to the park owner of the
  116  charges.
  117         (d) If a notice of increase in lot rental amount is not
  118  given 90 days before the renewal date of the rental agreement,
  119  the rental agreement must remain under the same terms until a
  120  90-day notice of increase in lot rental amount is given. The
  121  notice may provide for a rental term shorter than 1 year in
  122  order to maintain the same renewal date.
  123         Section 3. Subsection (1) of section 723.059, Florida
  124  Statutes, is amended to read:
  125         723.059 Rights of purchaser.—
  126         (1) The purchaser of a mobile home within a mobile home
  127  park may become a tenant of the park if such purchaser would
  128  otherwise qualify with the requirements of entry into the park
  129  under the park rules and regulations, subject to the approval of
  130  the park owner, but such approval may not be unreasonably
  131  withheld. The purchaser of the mobile home may cancel or rescind
  132  the contract for purchase of the mobile home if the purchaser’s
  133  tenancy has not been approved by the park owner 5 days before
  134  the closing of the purchase.
  135         Section 4. Subsection (1) of section 723.075, Florida
  136  Statutes, is amended to read:
  137         723.075 Homeowners’ associations.—
  138         (1) In order to exercise the rights provided in this
  139  chapter s. 723.071, the mobile home owners shall form an
  140  association in compliance with this section and ss. 723.077,
  141  723.078, and 723.079, which shall be a corporation for profit or
  142  not for profit and of which not less than two-thirds of all of
  143  the mobile home owners within the park shall have consented, in
  144  writing, to become members or shareholders. Upon incorporation
  145  of the association such consent by two-thirds of the mobile home
  146  owners, all consenting mobile home owners in the park may become
  147  members or shareholders. The term “member” or “shareholder”
  148  means a mobile home owner who consents to be bound by the
  149  articles of incorporation, bylaws, and policies of the
  150  incorporated homeowners’ association and their successors shall
  151  become members of the association and shall be bound by the
  152  provisions of the articles of incorporation, the bylaws of the
  153  association, and such restrictions as may be properly
  154  promulgated pursuant thereto. The association may not shall have
  155  a no member or shareholder who is not a bona fide owner of a
  156  mobile home located in the park. Upon incorporation and service
  157  of the notice described in s. 723.076, the association shall
  158  become the representative of all the mobile home owners in all
  159  matters relating to this chapter, regardless of whether the
  160  homeowner is a member of the association.
  161         Section 5. Paragraphs (b) and (c) of subsection (2) of
  162  section 723.078, Florida Statutes, are amended to read:
  163         723.078 Bylaws of homeowners’ associations.—
  164         (2) The bylaws shall provide and, if they do not, shall be
  165  deemed to include, the following provisions:
  166         (b) Quorum; voting requirements; proxies.—
  167         1. Unless otherwise provided in the bylaws, 30 percent of
  168  the total membership is required to constitute a quorum.
  169  Decisions shall be made by a majority of members represented at
  170  a meeting at which a quorum is present.
  171         2. A member may not vote by general proxy but may vote by
  172  limited proxies substantially conforming to a limited proxy form
  173  adopted by the division. Limited proxies and general proxies may
  174  be used to establish a quorum. Limited proxies may be used for
  175  votes taken to amend the articles of incorporation or bylaws
  176  pursuant to this section, and any other matters for which this
  177  chapter requires or permits a vote of members, except that no
  178  proxy, limited or general, may be used in the election of board
  179  members. If a mobile home or subdivision lot is owned jointly,
  180  the owners of the mobile home or subdivision lot must be counted
  181  as one for the purpose of determining the number of votes
  182  required for a majority. Only one vote per mobile home or
  183  subdivision lot shall be counted. Any number greater than 50
  184  percent of the total number of votes constitutes a majority.
  185  Notwithstanding the provisions of this section, members may vote
  186  in person at member meetings or by secret ballot, including
  187  absentee ballots, as defined by the division.
  188         3. A proxy is effective only for the specific meeting for
  189  which originally given and any lawfully adjourned meetings
  190  thereof. In no event shall any proxy be valid for a period
  191  longer than 90 days after the date of the first meeting for
  192  which it was given. Every proxy shall be revocable at any time
  193  at the pleasure of the member executing it.
  194         4. A member of the board of directors or a committee may
  195  submit in writing his or her agreement or disagreement with any
  196  action taken at a meeting that the member did not attend. This
  197  agreement or disagreement may not be used as a vote for or
  198  against the action taken and may not be used for the purposes of
  199  creating a quorum.
  200         (c) Board of directors’ and committee meetings.—
  201         1. Meetings of the board of directors and meetings of its
  202  committees at which a quorum is present shall be open to all
  203  members. Notwithstanding any other provision of law, the
  204  requirement that board meetings and committee meetings be open
  205  to the members does not apply to board or committee meetings
  206  held for the purpose of discussing personnel matters or meetings
  207  between the board or a committee and the association’s attorney,
  208  with respect to potential or pending litigation, where the
  209  meeting is held for the purpose of seeking or rendering legal
  210  advice, and where the contents of the discussion would otherwise
  211  be governed by the attorney-client privilege. Notice of meetings
  212  shall be posted in a conspicuous place upon the park property at
  213  least 48 hours in advance, except in an emergency. Notice of any
  214  meeting in which assessments against members are to be
  215  considered for any reason shall specifically contain a statement
  216  that assessments will be considered and the nature of such
  217  assessments.
  218         2. A board or committee member’s participation in a meeting
  219  via telephone, real-time videoconferencing, or similar real-time
  220  telephonic, electronic, or video communication counts toward a
  221  quorum, and such member may vote as if physically present. A
  222  speaker shall be used so that the conversation of those board or
  223  committee members attending by telephone may be heard by the
  224  board or committee members attending in person, as well as by
  225  members present at a meeting.
  226         3. Members of the board of directors may use e-mail as a
  227  means of communication but may not cast a vote on an association
  228  matter via e-mail.
  229         4. The right to attend meetings of the board of directors
  230  and its committees includes the right to speak at such meetings
  231  with reference to all designated agenda items. The association
  232  may adopt reasonable written rules governing the frequency,
  233  duration, and manner of members’ statements. Any item not
  234  included on the notice may be taken up on an emergency basis by
  235  at least a majority plus one of the members of the board. Such
  236  emergency action shall be noticed and ratified at the next
  237  regular meeting of the board. Any member may tape record or
  238  videotape meetings of the board of directors and its committees,
  239  except meetings between the board of directors or its appointed
  240  homeowners’ committee and the park owner. The division shall
  241  adopt reasonable rules governing the tape recording and
  242  videotaping of the meeting.
  243         5. Except as provided in paragraph (i), a vacancy occurring
  244  on the board of directors may be filled by the affirmative vote
  245  of the majority of the remaining directors, even though the
  246  remaining directors constitute less than a quorum; by the sole
  247  remaining director; if the vacancy is not so filled or if no
  248  director remains, by the members; or, on the application of any
  249  person, by the circuit court of the county in which the
  250  registered office of the corporation is located.
  251         6. The term of a director elected or appointed to fill a
  252  vacancy expires at the next annual meeting at which directors
  253  are elected. A directorship to be filled by reason of an
  254  increase in the number of directors may be filled by the board
  255  of directors, but only for the term of office continuing until
  256  the next election of directors by the members.
  257         7. A vacancy that will occur at a specific later date, by
  258  reason of a resignation effective at a later date, may be filled
  259  before the vacancy occurs. However, the new director may not
  260  take office until the vacancy occurs.
  261         8.a. The officers and directors of the association have a
  262  fiduciary relationship to the members.
  263         b. A director and committee member shall discharge his or
  264  her duties in good faith, with the care an ordinarily prudent
  265  person in a like position would exercise under similar
  266  circumstances, and in a manner he or she reasonably believes to
  267  be in the best interests of the corporation.
  268         9. In discharging his or her duties, a director may rely on
  269  information, opinions, reports, or statements, including
  270  financial statements and other financial data, if prepared or
  271  presented by:
  272         a. One or more officers or employees of the corporation who
  273  the director reasonably believes to be reliable and competent in
  274  the matters presented;
  275         b. Legal counsel, public accountants, or other persons as
  276  to matters the director reasonably believes are within the
  277  persons’ professional or expert competence; or
  278         c. A committee of the board of directors of which he or she
  279  is not a member if the director reasonably believes the
  280  committee merits confidence.
  281         10. A director is not acting in good faith if he or she has
  282  knowledge concerning the matter in question that makes reliance
  283  otherwise permitted by subparagraph 9. unwarranted.
  284         11. A director is not liable for any action taken as a
  285  director, or any failure to take any action, if he or she
  286  performed the duties of his or her office in compliance with
  287  this section.
  288         Section 6. Section 723.0781, Florida Statutes, is amended
  289  to read:
  290         723.0781 Board member training programs.—
  291         (1) Within 90 days after being elected or appointed to the
  292  board, a newly elected or appointed director shall certify by an
  293  affidavit in writing to the secretary of the association that he
  294  or she has read the association’s current articles of
  295  incorporation, bylaws, and the mobile home park’s prospectus,
  296  rental agreement, rules, regulations, and written policies; that
  297  he or she will work to uphold such documents and policies to the
  298  best of his or her ability; and that he or she will faithfully
  299  discharge his or her fiduciary responsibility to the
  300  association’s members.
  301         (2) In lieu of this written certification, within 90 days
  302  after being elected or appointed to the board, the newly elected
  303  or appointed director may submit a certificate of having
  304  satisfactorily completed the educational curriculum approved by
  305  the division within 1 year before or 90 days after the date of
  306  election or appointment. The educational certificate is valid
  307  and does not have to be resubmitted as long as the director
  308  serves on the board without interruption.
  309         (3) A director who fails to timely file the written
  310  certification or educational certificate is suspended from
  311  service on the board until he or she complies with this section.
  312  The board may temporarily fill the vacancy during the period of
  313  suspension.
  314         (4) The secretary of the association shall retain a
  315  director’s written certification or educational certificate for
  316  inspection by the members for 5 years after the director’s
  317  election or the duration of the director’s uninterrupted tenure,
  318  whichever is longer. Failure to have such written certification
  319  or educational certificate on file does not affect the validity
  320  of any board action.
  321         (5) This section becomes effective on October 1, 2016. Any
  322  member of the board of directors of a homeowners’ association
  323  not in compliance with the requirements of this section may not
  324  be considered in violation of this section until after October
  325  1, 2017.
  326         Section 7. This act shall take effect July 1, 2016.