Florida Senate - 2017 COMMITTEE AMENDMENT
Bill No. SB 1682
Ì6364900Î636490
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
04/06/2017 .
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The Committee on Regulated Industries (Garcia) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Subsections (3) and (9), paragraphs (a) and (c)
6 of subsection (12), and subsection (13) of section 718.111,
7 Florida Statutes, are amended, and paragraph (g) is added to
8 subsection (12) of that section, to read:
9 718.111 The association.—
10 (3) POWER TO MANAGE CONDOMINIUM PROPERTY AND TO CONTRACT,
11 SUE, AND BE SUED; CONFLICT OF INTEREST.—
12 (a) The association may contract, sue, or be sued with
13 respect to the exercise or nonexercise of its powers. For these
14 purposes, the powers of the association include, but are not
15 limited to, the maintenance, management, and operation of the
16 condominium property. After control of the association is
17 obtained by unit owners other than the developer, the
18 association may institute, maintain, settle, or appeal actions
19 or hearings in its name on behalf of all unit owners concerning
20 matters of common interest to most or all unit owners,
21 including, but not limited to, the common elements; the roof and
22 structural components of a building or other improvements;
23 mechanical, electrical, and plumbing elements serving an
24 improvement or a building; representations of the developer
25 pertaining to any existing or proposed commonly used facilities;
26 and protesting ad valorem taxes on commonly used facilities and
27 on units; and may defend actions in eminent domain or bring
28 inverse condemnation actions. If the association has the
29 authority to maintain a class action, the association may be
30 joined in an action as representative of that class with
31 reference to litigation and disputes involving the matters for
32 which the association could bring a class action. Nothing herein
33 limits any statutory or common-law right of any individual unit
34 owner or class of unit owners to bring any action without
35 participation by the association which may otherwise be
36 available.
37 (b) An association may not hire an attorney that represents
38 the management company of the association.
39 (9) PURCHASE OF UNITS.—The association has the power,
40 unless prohibited by the declaration, articles of incorporation,
41 or bylaws of the association, to purchase units in the
42 condominium and to acquire and hold, lease, mortgage, and convey
43 them. There shall be no limitation on the association’s right to
44 purchase a unit at a foreclosure sale resulting from the
45 association’s foreclosure of its lien for unpaid assessments, or
46 to take title by deed in lieu of foreclosure. However, except
47 for a timeshare condominium, a board member, manager, or
48 management company may not purchase a unit at a foreclosure sale
49 resulting from the association’s foreclosure of its lien for
50 unpaid assessments or take title by deed in lieu of foreclosure.
51 (12) OFFICIAL RECORDS.—
52 (a) From the inception of the association, the association
53 shall maintain each of the following items, if applicable, which
54 constitutes the official records of the association:
55 1. A copy of the plans, permits, warranties, and other
56 items provided by the developer pursuant to s. 718.301(4).
57 2. A photocopy of the recorded declaration of condominium
58 of each condominium operated by the association and each
59 amendment to each declaration.
60 3. A photocopy of the recorded bylaws of the association
61 and each amendment to the bylaws.
62 4. A certified copy of the articles of incorporation of the
63 association, or other documents creating the association, and
64 each amendment thereto.
65 5. A copy of the current rules of the association.
66 6. A book or books that contain the minutes of all meetings
67 of the association, the board of administration, and the unit
68 owners, which minutes must be retained for at least 7 years.
69 7. A current roster of all unit owners and their mailing
70 addresses, unit identifications, voting certifications, and, if
71 known, telephone numbers. The association shall also maintain
72 the electronic mailing addresses and facsimile numbers of unit
73 owners consenting to receive notice by electronic transmission.
74 The electronic mailing addresses and facsimile numbers are not
75 accessible to unit owners if consent to receive notice by
76 electronic transmission is not provided in accordance with sub
77 subparagraph (c)5.e. subparagraph (c)5. However, the association
78 is not liable for an inadvertent disclosure of the electronic
79 mail address or facsimile number for receiving electronic
80 transmission of notices.
81 8. All current insurance policies of the association and
82 condominiums operated by the association.
83 9. A current copy of any management agreement, lease, or
84 other contract to which the association is a party or under
85 which the association or the unit owners have an obligation or
86 responsibility.
87 10. Bills of sale or transfer for all property owned by the
88 association.
89 11. Accounting records for the association and separate
90 accounting records for each condominium that the association
91 operates. All accounting records must be maintained for at least
92 7 years. Any person who knowingly or intentionally defaces or
93 destroys such records, or who knowingly or intentionally fails
94 to create or maintain such records, with the intent of causing
95 harm to the association or one or more of its members, is
96 personally subject to a civil penalty pursuant to s.
97 718.501(1)(d). The accounting records must include, but are not
98 limited to:
99 a. Accurate, itemized, and detailed records of all receipts
100 and expenditures.
101 b. A current account and a monthly, bimonthly, or quarterly
102 statement of the account for each unit designating the name of
103 the unit owner, the due date and amount of each assessment, the
104 amount paid on the account, and the balance due.
105 c. All audits, reviews, accounting statements, and
106 financial reports of the association or condominium.
107 d. All contracts for work to be performed. Bids for work to
108 be performed are also considered official records and must be
109 maintained by the association.
110 12. Ballots, sign-in sheets, voting proxies, and all other
111 papers relating to voting by unit owners, which must be
112 maintained for 1 year from the date of the election, vote, or
113 meeting to which the document relates, notwithstanding paragraph
114 (b).
115 13. All rental records if the association is acting as
116 agent for the rental of condominium units.
117 14. A copy of the current question and answer sheet as
118 described in s. 718.504.
119 15. All other written records of the association not
120 specifically included in the foregoing which are related to the
121 operation of the association.
122 16. A copy of the inspection report as described in s.
123 718.301(4)(p).
124 17. Bids for materials, equipment, or services.
125 (c)1. The official records of the association are open to
126 inspection by any association member or the authorized
127 representative of such member at all reasonable times. The right
128 to inspect the records includes the right to make or obtain
129 copies, at the reasonable expense, if any, of the member or
130 authorized representative of such member. A renter of a unit has
131 a right to inspect and copy the association’s bylaws and rules.
132 The association may adopt reasonable rules regarding the
133 frequency, time, location, notice, and manner of record
134 inspections and copying. The failure of an association to
135 provide the records within 10 working days after receipt of a
136 written request creates a rebuttable presumption that the
137 association willfully failed to comply with this paragraph. A
138 unit owner who is denied access to official records is entitled
139 to the actual damages or minimum damages for the association’s
140 willful failure to comply. Minimum damages are $50 per calendar
141 day for up to 10 days, beginning on the 11th working day after
142 receipt of the written request. The failure to permit inspection
143 entitles any person prevailing in an enforcement action to
144 recover reasonable attorney fees from the person in control of
145 the records who, directly or indirectly, knowingly denied access
146 to the records.
147 2. Any director or member of the board or association who
148 knowingly, willfully, and repeatedly violates subparagraph 1.
149 commits a misdemeanor of the second degree, punishable as
150 provided in s. 775.082 or s. 775.083. For purposes of this
151 subparagraph, the term “repeatedly violates” means more than two
152 violations within a 12-month period.
153 3. Any person who knowingly or intentionally defaces or
154 destroys accounting records that are required by this chapter to
155 be maintained during the period for which such records are
156 required to be maintained, or who knowingly or intentionally
157 fails to create or maintain accounting records that are required
158 to be created or maintained, with the intent of causing harm to
159 the association or one or more of its members, commits a
160 misdemeanor of the first degree, punishable as provided in s.
161 775.082 or s. 775.083.
162 4. Any person who willfully and knowingly refuses to
163 release or otherwise produce association records with the intent
164 of facilitating the commission of a crime or avoiding or
165 escaping detection, arrest, trial, or punishment for a crime
166 commits a felony of the third degree, punishable as provided in
167 s. 775.082, s. 775.083, or s. 775.084 is personally subject to a
168 civil penalty pursuant to s. 718.501(1)(d).
169 5. The association shall maintain an adequate number of
170 copies of the declaration, articles of incorporation, bylaws,
171 and rules, and all amendments to each of the foregoing, as well
172 as the question and answer sheet as described in s. 718.504 and
173 year-end financial information required under this section, on
174 the condominium property to ensure their availability to unit
175 owners and prospective purchasers, and may charge its actual
176 costs for preparing and furnishing these documents to those
177 requesting the documents. An association shall allow a member or
178 his or her authorized representative to use a portable device,
179 including a smartphone, tablet, portable scanner, or any other
180 technology capable of scanning or taking photographs, to make an
181 electronic copy of the official records in lieu of the
182 association’s providing the member or his or her authorized
183 representative with a copy of such records. The association may
184 not charge a member or his or her authorized representative for
185 the use of a portable device. Notwithstanding this paragraph,
186 the following records are not accessible to unit owners:
187 a.1. Any record protected by the lawyer-client privilege as
188 described in s. 90.502 and any record protected by the work
189 product privilege, including a record prepared by an association
190 attorney or prepared at the attorney’s express direction, which
191 reflects a mental impression, conclusion, litigation strategy,
192 or legal theory of the attorney or the association, and which
193 was prepared exclusively for civil or criminal litigation or for
194 adversarial administrative proceedings, or which was prepared in
195 anticipation of such litigation or proceedings until the
196 conclusion of the litigation or proceedings.
197 b.2. Information obtained by an association in connection
198 with the approval of the lease, sale, or other transfer of a
199 unit.
200 c.3. Personnel records of association or management company
201 employees, including, but not limited to, disciplinary, payroll,
202 health, and insurance records. For purposes of this sub
203 subparagraph subparagraph, the term “personnel records” does not
204 include written employment agreements with an association
205 employee or management company, or budgetary or financial
206 records that indicate the compensation paid to an association
207 employee.
208 d.4. Medical records of unit owners.
209 e.5. Social security numbers, driver license numbers,
210 credit card numbers, e-mail addresses, telephone numbers,
211 facsimile numbers, emergency contact information, addresses of a
212 unit owner other than as provided to fulfill the association’s
213 notice requirements, and other personal identifying information
214 of any person, excluding the person’s name, unit designation,
215 mailing address, property address, and any address, e-mail
216 address, or facsimile number provided to the association to
217 fulfill the association’s notice requirements. Notwithstanding
218 the restrictions in this sub-subparagraph subparagraph, an
219 association may print and distribute to parcel owners a
220 directory containing the name, parcel address, and all telephone
221 numbers of each parcel owner. However, an owner may exclude his
222 or her telephone numbers from the directory by so requesting in
223 writing to the association. An owner may consent in writing to
224 the disclosure of other contact information described in this
225 sub-subparagraph subparagraph. The association is not liable for
226 the inadvertent disclosure of information that is protected
227 under this sub-subparagraph subparagraph if the information is
228 included in an official record of the association and is
229 voluntarily provided by an owner and not requested by the
230 association.
231 f.6. Electronic security measures that are used by the
232 association to safeguard data, including passwords.
233 g.7. The software and operating system used by the
234 association which allow the manipulation of data, even if the
235 owner owns a copy of the same software used by the association.
236 The data is part of the official records of the association.
237 (g)1. By October 1, 2017, an association with 500 or more
238 units which does not manage timeshare units shall post digital
239 copies of the documents specified in subparagraph 2. on its
240 website.
241 a. The association’s website must be:
242 (I) An independent website or web portal wholly owned and
243 operated by the association; or
244 (II) A website or web portal operated by a third-party
245 provider with whom the association owns, leases, rents, or
246 otherwise obtains the right to operate a web page, subpage, web
247 portal, or collection of subpages or web portals dedicated to
248 the association’s activities and on which required notices,
249 records, and documents may be posted by the association.
250 b. The association’s website must be accessible through the
251 Internet and must contain a subpage, web portal, or other
252 protected electronic location that is inaccessible to the
253 general public and accessible only to unit owners and employees
254 of the association.
255 c. Upon a unit owner’s written request, the association
256 must provide the unit owner with a username and password and
257 access to the protected sections of the association’s website
258 that contain any notices, records, or documents that must be
259 electronically provided.
260 2. A current copy of the following documents must be posted
261 in digital format on the association’s website:
262 a. The recorded declaration of condominium of each
263 condominium operated by the association and each amendment to
264 each declaration.
265 b. The recorded bylaws of the association and each
266 amendment to the bylaws.
267 c. The articles of incorporation of the association, or
268 other documents creating the association, and each amendment
269 thereto. The copy posted pursuant to this sub-subparagraph must
270 be a copy of the articles of incorporation filed with the
271 Department of State.
272 d. The rules of the association.
273 e. Any management agreement, lease, or other contract to
274 which the association is a party or under which the association
275 or the unit owners have an obligation or responsibility.
276 Summaries of bids for materials, equipment, or services must be
277 maintained on the website for 1 year.
278 f. The annual budget required by s. 718.112(2)(f) and any
279 proposed budget to be considered at the annual meeting.
280 g. The financial report required by subsection (13) and any
281 proposed financial report to be considered at a meeting.
282 h. The certification of each director required by s.
283 718.112(2)(d)4.b.
284 i. All contracts or transactions between the association
285 and any director, officer, corporation, firm, or association
286 that is not an affiliated condominium association or any other
287 entity in which an association director is also a director or
288 officer and financially interested.
289 j. Any contract or document regarding a conflict of
290 interest or possible conflict of interest as provided in ss.
291 468.436(2) and 718.3026(3).
292 k. The notice of any unit owner meeting and the agenda for
293 the meeting, as required by s. 718.112(2)(d)3., no later than 14
294 days before the meeting. The notice must be posted in plain view
295 on the front page of the website, or on a separate subpage of
296 the website labeled “Notices” which is conspicuously visible and
297 linked from the front page. The association must also post on
298 its website any document to be considered and voted on by the
299 owners during the meeting or any document listed on the agenda
300 at least 7 days before the meeting at which the document or the
301 information within the document will be considered.
302 l. Notice of any board meeting, and the agenda and any
303 other document required for the meeting as required by s.
304 718.112(2)(c), which must be posted no later than the date
305 required for notice pursuant to s. 718.112(2)(c).
306 3. The association shall ensure that the information and
307 records described in paragraph (c), which are not permitted to
308 be accessible to unit owners, are not posted on the
309 association’s website. If protected information or information
310 restricted from being accessible to unit owners is included in
311 documents that are required to be posted on the association’s
312 website, the association shall ensure the information is
313 redacted before posting the documents online.
314 (13) FINANCIAL REPORTING.—Within 90 days after the end of
315 the fiscal year, or annually on a date provided in the bylaws,
316 the association shall prepare and complete, or contract for the
317 preparation and completion of, a financial report for the
318 preceding fiscal year. Within 21 days after the final financial
319 report is completed by the association or received from the
320 third party, but not later than 120 days after the end of the
321 fiscal year or other date as provided in the bylaws, the
322 association shall mail to each unit owner at the address last
323 furnished to the association by the unit owner, or hand deliver
324 to each unit owner, a copy of the most recent financial report
325 or a notice that a copy of the most recent financial report will
326 be mailed or hand delivered to the unit owner, without charge,
327 within 5 business days after upon receipt of a written request
328 from the unit owner. The division shall adopt rules setting
329 forth uniform accounting principles and standards to be used by
330 all associations and addressing the financial reporting
331 requirements for multicondominium associations. The rules must
332 include, but not be limited to, standards for presenting a
333 summary of association reserves, including a good faith estimate
334 disclosing the annual amount of reserve funds that would be
335 necessary for the association to fully fund reserves for each
336 reserve item based on the straight-line accounting method. This
337 disclosure is not applicable to reserves funded via the pooling
338 method. In adopting such rules, the division shall consider the
339 number of members and annual revenues of an association.
340 Financial reports shall be prepared as follows:
341 (a) An association that meets the criteria of this
342 paragraph shall prepare a complete set of financial statements
343 in accordance with generally accepted accounting principles. The
344 financial statements must be based upon the association’s total
345 annual revenues, as follows:
346 1. An association with total annual revenues of $150,000 or
347 more, but less than $300,000, shall prepare compiled financial
348 statements.
349 2. An association with total annual revenues of at least
350 $300,000, but less than $500,000, shall prepare reviewed
351 financial statements.
352 3. An association with total annual revenues of $500,000 or
353 more shall prepare audited financial statements.
354 (b)1. An association with total annual revenues of less
355 than $150,000 shall prepare a report of cash receipts and
356 expenditures.
357 2. An association that operates fewer than 50 units,
358 regardless of the association’s annual revenues, shall prepare a
359 report of cash receipts and expenditures in lieu of financial
360 statements required by paragraph (a).
361 3. A report of cash receipts and disbursements must
362 disclose the amount of receipts by accounts and receipt
363 classifications and the amount of expenses by accounts and
364 expense classifications, including, but not limited to, the
365 following, as applicable: costs for security, professional and
366 management fees and expenses, taxes, costs for recreation
367 facilities, expenses for refuse collection and utility services,
368 expenses for lawn care, costs for building maintenance and
369 repair, insurance costs, administration and salary expenses, and
370 reserves accumulated and expended for capital expenditures,
371 deferred maintenance, and any other category for which the
372 association maintains reserves.
373 (c) An association may prepare, without a meeting of or
374 approval by the unit owners:
375 1. Compiled, reviewed, or audited financial statements, if
376 the association is required to prepare a report of cash receipts
377 and expenditures;
378 2. Reviewed or audited financial statements, if the
379 association is required to prepare compiled financial
380 statements; or
381 3. Audited financial statements if the association is
382 required to prepare reviewed financial statements.
383 (d) If approved by a majority of the voting interests
384 present at a properly called meeting of the association, an
385 association may prepare:
386 1. A report of cash receipts and expenditures in lieu of a
387 compiled, reviewed, or audited financial statement;
388 2. A report of cash receipts and expenditures or a compiled
389 financial statement in lieu of a reviewed or audited financial
390 statement; or
391 3. A report of cash receipts and expenditures, a compiled
392 financial statement, or a reviewed financial statement in lieu
393 of an audited financial statement.
394
395 Such meeting and approval must occur before the end of the
396 fiscal year and is effective only for the fiscal year in which
397 the vote is taken, except that the approval may also be
398 effective for the following fiscal year. If the developer has
399 not turned over control of the association, all unit owners,
400 including the developer, may vote on issues related to the
401 preparation of the association’s financial reports, from the
402 date of incorporation of the association through the end of the
403 second fiscal year after the fiscal year in which the
404 certificate of a surveyor and mapper is recorded pursuant to s.
405 718.104(4)(e) or an instrument that transfers title to a unit in
406 the condominium which is not accompanied by a recorded
407 assignment of developer rights in favor of the grantee of such
408 unit is recorded, whichever occurs first. Thereafter, all unit
409 owners except the developer may vote on such issues until
410 control is turned over to the association by the developer. Any
411 audit or review prepared under this section shall be paid for by
412 the developer if done before turnover of control of the
413 association. An association may not waive the financial
414 reporting requirements of this section for more than 3
415 consecutive years.
416 (e) If the division determines that an association has not
417 mailed or hand delivered to the unit owner a copy of the most
418 recent financial report within 5 business days after receipt of
419 a written request from the unit owner, the unit owner may give
420 notice to the division of the association’s failure to comply.
421 Upon notification, the division shall give notice to the
422 association that the association must mail or hand deliver the
423 copy of the most recent financial report to the unit owner and
424 the division within 5 business days after such notice. Any
425 association that fails to comply with the division’s request may
426 not waive the financial reporting requirement provided in
427 paragraph (d). A financial report received by the division
428 pursuant to this paragraph shall be maintained, and the division
429 shall provide a copy of such report to an association member
430 upon his or her request.
431 Section 2. Paragraphs (d) and (j) of subsection (2) of
432 section 718.112, Florida Statutes, are amended, and paragraph
433 (p) is added to that subsection, to read:
434 718.112 Bylaws.—
435 (2) REQUIRED PROVISIONS.—The bylaws shall provide for the
436 following and, if they do not do so, shall be deemed to include
437 the following:
438 (d) Unit owner meetings.—
439 1. An annual meeting of the unit owners shall be held at
440 the location provided in the association bylaws and, if the
441 bylaws are silent as to the location, the meeting shall be held
442 within 45 miles of the condominium property. However, such
443 distance requirement does not apply to an association governing
444 a timeshare condominium.
445 2. Unless the bylaws provide otherwise, a vacancy on the
446 board caused by the expiration of a director’s term shall be
447 filled by electing a new board member, and the election must be
448 by secret ballot. An election is not required if the number of
449 vacancies equals or exceeds the number of candidates. For
450 purposes of this paragraph, the term “candidate” means an
451 eligible person who has timely submitted the written notice, as
452 described in sub-subparagraph 4.a., of his or her intention to
453 become a candidate. Except in a timeshare or nonresidential
454 condominium, or if the staggered term of a board member does not
455 expire until a later annual meeting, or if all members’ terms
456 would otherwise expire but there are no candidates, the terms of
457 all board members expire at the annual meeting, and such members
458 may stand for reelection unless prohibited by the bylaws. If the
459 bylaws or articles of incorporation permit terms of no more than
460 2 years, the association Board members may serve 2-year terms if
461 permitted by the bylaws or articles of incorporation. A board
462 member may not serve more than four consecutive 2-year terms,
463 unless approved by an affirmative vote of two-thirds of the
464 total voting interests of the association. If the number of
465 board members whose terms expire at the annual meeting equals or
466 exceeds the number of candidates, the candidates become members
467 of the board effective upon the adjournment of the annual
468 meeting. Unless the bylaws provide otherwise, any remaining
469 vacancies shall be filled by the affirmative vote of the
470 majority of the directors making up the newly constituted board
471 even if the directors constitute less than a quorum or there is
472 only one director. In a residential condominium association of
473 more than 10 units or in a residential condominium association
474 that does not include timeshare units or timeshare interests,
475 coowners of a unit may not serve as members of the board of
476 directors at the same time unless they own more than one unit or
477 unless there are not enough eligible candidates to fill the
478 vacancies on the board at the time of the vacancy. A unit owner
479 in a residential condominium desiring to be a candidate for
480 board membership must comply with sub-subparagraph 4.a. and must
481 be eligible to be a candidate to serve on the board of directors
482 at the time of the deadline for submitting a notice of intent to
483 run in order to have his or her name listed as a proper
484 candidate on the ballot or to serve on the board. A person who
485 has been suspended or removed by the division under this
486 chapter, or who is delinquent in the payment of any monetary
487 obligation due to the association, is not eligible to be a
488 candidate for board membership and may not be listed on the
489 ballot. A person who has been convicted of any felony in this
490 state or in a United States District or Territorial Court, or
491 who has been convicted of any offense in another jurisdiction
492 which would be considered a felony if committed in this state,
493 is not eligible for board membership unless such felon’s civil
494 rights have been restored for at least 5 years as of the date
495 such person seeks election to the board. The validity of an
496 action by the board is not affected if it is later determined
497 that a board member is ineligible for board membership due to
498 having been convicted of a felony. This subparagraph does not
499 limit the term of a member of the board of a nonresidential
500 condominium.
501 3. The bylaws must provide the method of calling meetings
502 of unit owners, including annual meetings. Written notice must
503 include an agenda, must be mailed, hand delivered, or
504 electronically transmitted to each unit owner at least 14 days
505 before the annual meeting, and must be posted in a conspicuous
506 place on the condominium property at least 14 continuous days
507 before the annual meeting. Upon notice to the unit owners, the
508 board shall, by duly adopted rule, designate a specific location
509 on the condominium property or association property where all
510 notices of unit owner meetings shall be posted. This requirement
511 does not apply if there is no condominium property or
512 association property for posting notices. In lieu of, or in
513 addition to, the physical posting of meeting notices, the
514 association may, by reasonable rule, adopt a procedure for
515 conspicuously posting and repeatedly broadcasting the notice and
516 the agenda on a closed-circuit cable television system serving
517 the condominium association. However, if broadcast notice is
518 used in lieu of a notice posted physically on the condominium
519 property, the notice and agenda must be broadcast at least four
520 times every broadcast hour of each day that a posted notice is
521 otherwise required under this section. If broadcast notice is
522 provided, the notice and agenda must be broadcast in a manner
523 and for a sufficient continuous length of time so as to allow an
524 average reader to observe the notice and read and comprehend the
525 entire content of the notice and the agenda. Unless a unit owner
526 waives in writing the right to receive notice of the annual
527 meeting, such notice must be hand delivered, mailed, or
528 electronically transmitted to each unit owner. Notice for
529 meetings and notice for all other purposes must be mailed to
530 each unit owner at the address last furnished to the association
531 by the unit owner, or hand delivered to each unit owner.
532 However, if a unit is owned by more than one person, the
533 association must provide notice to the address that the
534 developer identifies for that purpose and thereafter as one or
535 more of the owners of the unit advise the association in
536 writing, or if no address is given or the owners of the unit do
537 not agree, to the address provided on the deed of record. An
538 officer of the association, or the manager or other person
539 providing notice of the association meeting, must provide an
540 affidavit or United States Postal Service certificate of
541 mailing, to be included in the official records of the
542 association affirming that the notice was mailed or hand
543 delivered in accordance with this provision.
544 4. The members of the board of a residential condominium
545 shall be elected by written ballot or voting machine. Proxies
546 may not be used in electing the board in general elections or
547 elections to fill vacancies caused by recall, resignation, or
548 otherwise, unless otherwise provided in this chapter. This
549 subparagraph does not apply to an association governing a
550 timeshare condominium.
551 a. At least 60 days before a scheduled election, the
552 association shall mail, deliver, or electronically transmit, by
553 separate association mailing or included in another association
554 mailing, delivery, or transmission, including regularly
555 published newsletters, to each unit owner entitled to a vote, a
556 first notice of the date of the election. A unit owner or other
557 eligible person desiring to be a candidate for the board must
558 give written notice of his or her intent to be a candidate to
559 the association at least 40 days before a scheduled election.
560 Together with the written notice and agenda as set forth in
561 subparagraph 3., the association shall mail, deliver, or
562 electronically transmit a second notice of the election to all
563 unit owners entitled to vote, together with a ballot that lists
564 all candidates. Upon request of a candidate, an information
565 sheet, no larger than 8 1/2 inches by 11 inches, which must be
566 furnished by the candidate at least 35 days before the election,
567 must be included with the mailing, delivery, or transmission of
568 the ballot, with the costs of mailing, delivery, or electronic
569 transmission and copying to be borne by the association. The
570 association is not liable for the contents of the information
571 sheets prepared by the candidates. In order to reduce costs, the
572 association may print or duplicate the information sheets on
573 both sides of the paper. The division shall by rule establish
574 voting procedures consistent with this sub-subparagraph,
575 including rules establishing procedures for giving notice by
576 electronic transmission and rules providing for the secrecy of
577 ballots. Elections shall be decided by a plurality of ballots
578 cast. There is no quorum requirement; however, at least 20
579 percent of the eligible voters must cast a ballot in order to
580 have a valid election. A unit owner may not permit any other
581 person to vote his or her ballot, and any ballots improperly
582 cast are invalid. A unit owner who violates this provision may
583 be fined by the association in accordance with s. 718.303. A
584 unit owner who needs assistance in casting the ballot for the
585 reasons stated in s. 101.051 may obtain such assistance. The
586 regular election must occur on the date of the annual meeting.
587 Notwithstanding this sub-subparagraph, an election is not
588 required unless more candidates file notices of intent to run or
589 are nominated than board vacancies exist.
590 b. Within 90 days after being elected or appointed to the
591 board of an association of a residential condominium, each newly
592 elected or appointed director shall certify in writing to the
593 secretary of the association that he or she has read the
594 association’s declaration of condominium, articles of
595 incorporation, bylaws, and current written policies; that he or
596 she will work to uphold such documents and policies to the best
597 of his or her ability; and that he or she will faithfully
598 discharge his or her fiduciary responsibility to the
599 association’s members. In lieu of this written certification,
600 within 90 days after being elected or appointed to the board,
601 the newly elected or appointed director may submit a certificate
602 of having satisfactorily completed the educational curriculum
603 administered by a division-approved condominium education
604 provider within 1 year before or 90 days after the date of
605 election or appointment. The written certification or
606 educational certificate is valid and does not have to be
607 resubmitted as long as the director serves on the board without
608 interruption. A director of an association of a residential
609 condominium who fails to timely file the written certification
610 or educational certificate is suspended from service on the
611 board until he or she complies with this sub-subparagraph. The
612 board may temporarily fill the vacancy during the period of
613 suspension. The secretary shall cause the association to retain
614 a director’s written certification or educational certificate
615 for inspection by the members for 5 years after a director’s
616 election or the duration of the director’s uninterrupted tenure,
617 whichever is longer. Failure to have such written certification
618 or educational certificate on file does not affect the validity
619 of any board action.
620 c. Any challenge to the election process must be commenced
621 within 60 days after the election results are announced.
622 5. Any approval by unit owners called for by this chapter
623 or the applicable declaration or bylaws, including, but not
624 limited to, the approval requirement in s. 718.111(8), must be
625 made at a duly noticed meeting of unit owners and is subject to
626 all requirements of this chapter or the applicable condominium
627 documents relating to unit owner decisionmaking, except that
628 unit owners may take action by written agreement, without
629 meetings, on matters for which action by written agreement
630 without meetings is expressly allowed by the applicable bylaws
631 or declaration or any law that provides for such action.
632 6. Unit owners may waive notice of specific meetings if
633 allowed by the applicable bylaws or declaration or any law.
634 Notice of meetings of the board of administration, unit owner
635 meetings, except unit owner meetings called to recall board
636 members under paragraph (j), and committee meetings may be given
637 by electronic transmission to unit owners who consent to receive
638 notice by electronic transmission.
639 7. Unit owners have the right to participate in meetings of
640 unit owners with reference to all designated agenda items.
641 However, the association may adopt reasonable rules governing
642 the frequency, duration, and manner of unit owner participation.
643 8. A unit owner may tape record or videotape a meeting of
644 the unit owners subject to reasonable rules adopted by the
645 division.
646 9. Unless otherwise provided in the bylaws, any vacancy
647 occurring on the board before the expiration of a term may be
648 filled by the affirmative vote of the majority of the remaining
649 directors, even if the remaining directors constitute less than
650 a quorum, or by the sole remaining director. In the alternative,
651 a board may hold an election to fill the vacancy, in which case
652 the election procedures must conform to sub-subparagraph 4.a.
653 unless the association governs 10 units or fewer and has opted
654 out of the statutory election process, in which case the bylaws
655 of the association control. Unless otherwise provided in the
656 bylaws, a board member appointed or elected under this section
657 shall fill the vacancy for the unexpired term of the seat being
658 filled. Filling vacancies created by recall is governed by
659 paragraph (j) and rules adopted by the division.
660 10. This chapter does not limit the use of general or
661 limited proxies, require the use of general or limited proxies,
662 or require the use of a written ballot or voting machine for any
663 agenda item or election at any meeting of a timeshare
664 condominium association or nonresidential condominium
665 association.
666
667 Notwithstanding subparagraph (b)2. and sub-subparagraph 4.a., an
668 association of 10 or fewer units may, by affirmative vote of a
669 majority of the total voting interests, provide for different
670 voting and election procedures in its bylaws, which may be by a
671 proxy specifically delineating the different voting and election
672 procedures. The different voting and election procedures may
673 provide for elections to be conducted by limited or general
674 proxy.
675 (j) Recall of board members.—Subject to s. 718.301, any
676 member of the board of administration may be recalled and
677 removed from office with or without cause by the vote or
678 agreement in writing by a majority of all the voting interests.
679 A special meeting of the unit owners to recall a member or
680 members of the board of administration may be called by 10
681 percent of the voting interests giving notice of the meeting as
682 required for a meeting of unit owners, and the notice shall
683 state the purpose of the meeting. Electronic transmission may
684 not be used as a method of giving notice of a meeting called in
685 whole or in part for this purpose.
686 1. If the recall is approved by a majority of all voting
687 interests by a vote at a meeting, the recall will be effective
688 as provided in this paragraph. The board shall duly notice and
689 hold a board meeting within 5 full business days after the
690 adjournment of the unit owner meeting to recall one or more
691 board members. At the meeting, the board shall either certify
692 the recall, in which case Such member or members shall be
693 recalled effective immediately and shall turn over to the board
694 within 10 5 full business days after the vote any and all
695 records and property of the association in their possession, or
696 shall proceed as set forth in subparagraph 3.
697 2. If the proposed recall is by an agreement in writing by
698 a majority of all voting interests, the agreement in writing or
699 a copy thereof shall be served on the association by certified
700 mail or by personal service in the manner authorized by chapter
701 48 and the Florida Rules of Civil Procedure. The board of
702 administration shall duly notice and hold a meeting of the board
703 within 5 full business days after receipt of the agreement in
704 writing. At the meeting, the board shall either certify the
705 written agreement to recall a member or members of the board, in
706 which case such member or members shall be recalled effective
707 immediately and shall turn over to the board within 5 full
708 business days any and all records and property of the
709 association in their possession, or proceed as described in
710 subparagraph 3.
711 3. If the board determines not to certify the written
712 agreement to recall a member or members of the board, or does
713 not certify the recall by a vote at a meeting, The board shall,
714 within 5 full business days after the meeting, file with the
715 division a petition for arbitration pursuant to the procedures
716 in s. 718.1255. For the purposes of this section, the unit
717 owners who voted at the meeting or who executed the agreement in
718 writing shall constitute one party under the petition for
719 arbitration. If the arbitrator certifies the recall as to any
720 member or members of the board, the recall will be effective
721 upon mailing of the final order of arbitration to the
722 association. If the association fails to comply with the order
723 of the arbitrator, the division may take action pursuant to s.
724 718.501. Any member or members so recalled shall deliver to the
725 board any and all records of the association in their possession
726 within 5 full business days after the effective date of the
727 recall.
728 3.4. If the board fails to duly notice and hold a board
729 meeting within 5 full business days after service of an
730 agreement in writing or within 5 full business days after the
731 adjournment of the unit owner recall meeting, the recall shall
732 be deemed effective and the board members so recalled shall
733 immediately turn over to the board within 10 full business days
734 after the vote any and all records and property of the
735 association.
736 4.5. If the board fails to duly notice and hold the
737 required meeting or fails to file the required petition, the
738 unit owner representative may file a petition pursuant to s.
739 718.1255 challenging the board’s failure to act. The petition
740 must be filed within 60 days after the expiration of the
741 applicable 5-full-business-day period. The review of a petition
742 under this subparagraph is limited to the sufficiency of service
743 on the board and the facial validity of the written agreement or
744 ballots filed.
745 5.6. If a vacancy occurs on the board as a result of a
746 recall or removal and less than a majority of the board members
747 are removed, the vacancy may be filled by the affirmative vote
748 of a majority of the remaining directors, notwithstanding any
749 provision to the contrary contained in this subsection. If
750 vacancies occur on the board as a result of a recall and a
751 majority or more of the board members are removed, the vacancies
752 shall be filled in accordance with procedural rules to be
753 adopted by the division, which rules need not be consistent with
754 this subsection. The rules must provide procedures governing the
755 conduct of the recall election as well as the operation of the
756 association during the period after a recall but before the
757 recall election.
758 6.7. A board member who has been recalled may file a
759 petition pursuant to s. 718.1255 challenging the validity of the
760 recall. The petition must be filed within 60 days after the
761 recall is deemed certified. The association and the unit owner
762 representative shall be named as the respondents.
763 7.8. The division may not accept for filing a recall
764 petition, whether filed pursuant to subparagraph 1.,
765 subparagraph 2., subparagraph 4. 5., or subparagraph 6. 7. and
766 regardless of whether the recall was certified, when there are
767 60 or fewer days until the scheduled reelection of the board
768 member sought to be recalled or when 60 or fewer days have
769 elapsed since the election of the board member sought to be
770 recalled.
771 (p) Service providers; conflicts of interest.—An
772 association that is not a timeshare condominium association may
773 not employ or contract with any service provider that is owned
774 or operated by a board member or with any person who has a
775 financial relationship with a board member or officer.
776 Section 3. Subsection (4) of section 718.1255, Florida
777 Statutes, is amended to read:
778 718.1255 Alternative dispute resolution; voluntary
779 mediation; mandatory nonbinding arbitration; legislative
780 findings.—
781 (4) MANDATORY NONBINDING ARBITRATION AND MEDIATION OF
782 DISPUTES.—The Division of Florida Condominiums, Timeshares, and
783 Mobile Homes of the Department of Business and Professional
784 Regulation may shall employ full-time attorneys to act as
785 arbitrators to conduct the arbitration hearings provided by this
786 chapter. The division may also certify attorneys who are not
787 employed by the division to act as arbitrators to conduct the
788 arbitration hearings provided by this chapter section. No person
789 may be employed by the department as a full-time arbitrator
790 unless he or she is a member in good standing of The Florida
791 Bar. A person may only be certified by the division to act as an
792 arbitrator if he or she has been a member in good standing of
793 The Florida Bar for at least 5 years and has mediated or
794 arbitrated at least 10 disputes involving condominiums in this
795 state during the 3 years immediately preceding the date of
796 application, mediated or arbitrated at least 30 disputes in any
797 subject area in this state during the 3 years immediately
798 preceding the date of application, or attained board
799 certification in real estate law or condominium and planned
800 development law from The Florida Bar. Arbitrator certification
801 is valid for 1 year. An arbitrator who does not maintain the
802 minimum qualifications for initial certification may not have
803 his or her certification renewed. The department may not enter
804 into a legal services contract for an arbitration hearing under
805 this chapter with an attorney who is not a certified arbitrator
806 unless a certified arbitrator is not available within 50 miles
807 of the dispute. The department shall adopt rules of procedure to
808 govern such arbitration hearings including mediation incident
809 thereto. The decision of an arbitrator shall be final; however,
810 a decision shall not be deemed final agency action. Nothing in
811 this provision shall be construed to foreclose parties from
812 proceeding in a trial de novo unless the parties have agreed
813 that the arbitration is binding. If judicial proceedings are
814 initiated, the final decision of the arbitrator shall be
815 admissible in evidence in the trial de novo.
816 (a) Prior to the institution of court litigation, a party
817 to a dispute shall petition the division for nonbinding
818 arbitration. The petition must be accompanied by a filing fee in
819 the amount of $50. Filing fees collected under this section must
820 be used to defray the expenses of the alternative dispute
821 resolution program.
822 (b) The petition must recite, and have attached thereto,
823 supporting proof that the petitioner gave the respondents:
824 1. Advance written notice of the specific nature of the
825 dispute;
826 2. A demand for relief, and a reasonable opportunity to
827 comply or to provide the relief; and
828 3. Notice of the intention to file an arbitration petition
829 or other legal action in the absence of a resolution of the
830 dispute.
831
832 Failure to include the allegations or proof of compliance with
833 these prerequisites requires dismissal of the petition without
834 prejudice.
835 (c) Upon receipt, the petition shall be promptly reviewed
836 by the division to determine the existence of a dispute and
837 compliance with the requirements of paragraphs (a) and (b). If
838 emergency relief is required and is not available through
839 arbitration, a motion to stay the arbitration may be filed. The
840 motion must be accompanied by a verified petition alleging facts
841 that, if proven, would support entry of a temporary injunction,
842 and if an appropriate motion and supporting papers are filed,
843 the division may abate the arbitration pending a court hearing
844 and disposition of a motion for temporary injunction.
845 (d) Upon determination by the division that a dispute
846 exists and that the petition substantially meets the
847 requirements of paragraphs (a) and (b) and any other applicable
848 rules, the division shall assign or enter into a contract with
849 an arbitrator and serve a copy of the petition shall be served
850 by the division upon all respondents. The arbitrator shall
851 conduct a hearing within 30 days after being assigned or
852 entering into a contract unless the petition is withdrawn or a
853 continuance is granted for good cause shown.
854 (e) Before or after the filing of the respondents’ answer
855 to the petition, any party may request that the arbitrator refer
856 the case to mediation under this section and any rules adopted
857 by the division. Upon receipt of a request for mediation, the
858 division shall promptly contact the parties to determine if
859 there is agreement that mediation would be appropriate. If all
860 parties agree, the dispute must be referred to mediation.
861 Notwithstanding a lack of an agreement by all parties, the
862 arbitrator may refer a dispute to mediation at any time.
863 (f) Upon referral of a case to mediation, the parties must
864 select a mutually acceptable mediator. To assist in the
865 selection, the arbitrator shall provide the parties with a list
866 of both volunteer and paid mediators that have been certified by
867 the division under s. 718.501. If the parties are unable to
868 agree on a mediator within the time allowed by the arbitrator,
869 the arbitrator shall appoint a mediator from the list of
870 certified mediators. If a case is referred to mediation, the
871 parties shall attend a mediation conference, as scheduled by the
872 parties and the mediator. If any party fails to attend a duly
873 noticed mediation conference, without the permission or approval
874 of the arbitrator or mediator, the arbitrator must impose
875 sanctions against the party, including the striking of any
876 pleadings filed, the entry of an order of dismissal or default
877 if appropriate, and the award of costs and attorney attorneys’
878 fees incurred by the other parties. Unless otherwise agreed to
879 by the parties or as provided by order of the arbitrator, a
880 party is deemed to have appeared at a mediation conference by
881 the physical presence of the party or its representative having
882 full authority to settle without further consultation, provided
883 that an association may comply by having one or more
884 representatives present with full authority to negotiate a
885 settlement and recommend that the board of administration ratify
886 and approve such a settlement within 5 days from the date of the
887 mediation conference. The parties shall share equally the
888 expense of mediation, unless they agree otherwise.
889 (g) The purpose of mediation as provided for by this
890 section is to present the parties with an opportunity to resolve
891 the underlying dispute in good faith, and with a minimum
892 expenditure of time and resources.
893 (h) Mediation proceedings must generally be conducted in
894 accordance with the Florida Rules of Civil Procedure, and these
895 proceedings are privileged and confidential to the same extent
896 as court-ordered mediation. Persons who are not parties to the
897 dispute are not allowed to attend the mediation conference
898 without the consent of all parties, with the exception of
899 counsel for the parties and corporate representatives designated
900 to appear for a party. If the mediator declares an impasse after
901 a mediation conference has been held, the arbitration proceeding
902 terminates, unless all parties agree in writing to continue the
903 arbitration proceeding, in which case the arbitrator’s decision
904 shall be binding or nonbinding, as agreed upon by the parties;
905 in the arbitration proceeding, the arbitrator shall not consider
906 any evidence relating to the unsuccessful mediation except in a
907 proceeding to impose sanctions for failure to appear at the
908 mediation conference. If the parties do not agree to continue
909 arbitration, the arbitrator shall enter an order of dismissal,
910 and either party may institute a suit in a court of competent
911 jurisdiction. The parties may seek to recover any costs and
912 attorney attorneys’ fees incurred in connection with arbitration
913 and mediation proceedings under this section as part of the
914 costs and fees that may be recovered by the prevailing party in
915 any subsequent litigation.
916 (i) Arbitration shall be conducted according to rules
917 adopted by the division. The filing of a petition for
918 arbitration shall toll the applicable statute of limitations.
919 (j) At the request of any party to the arbitration, the
920 arbitrator shall issue subpoenas for the attendance of witnesses
921 and the production of books, records, documents, and other
922 evidence and any party on whose behalf a subpoena is issued may
923 apply to the court for orders compelling such attendance and
924 production. Subpoenas shall be served and shall be enforceable
925 in the manner provided by the Florida Rules of Civil Procedure.
926 Discovery may, in the discretion of the arbitrator, be permitted
927 in the manner provided by the Florida Rules of Civil Procedure.
928 Rules adopted by the division may authorize any reasonable
929 sanctions except contempt for a violation of the arbitration
930 procedural rules of the division or for the failure of a party
931 to comply with a reasonable nonfinal order issued by an
932 arbitrator which is not under judicial review.
933 (k) The arbitration decision shall be rendered within 30
934 days after the hearing and presented to the parties in writing.
935 An arbitration decision is final in those disputes in which the
936 parties have agreed to be bound. An arbitration decision is also
937 final if a complaint for a trial de novo is not filed in a court
938 of competent jurisdiction in which the condominium is located
939 within 30 days. The right to file for a trial de novo entitles
940 the parties to file a complaint in the appropriate trial court
941 for a judicial resolution of the dispute. The prevailing party
942 in an arbitration proceeding shall be awarded the costs of the
943 arbitration and reasonable attorney attorney’s fees in an amount
944 determined by the arbitrator. Such an award shall include the
945 costs and reasonable attorney attorney’s fees incurred in the
946 arbitration proceeding as well as the costs and reasonable
947 attorney attorney’s fees incurred in preparing for and attending
948 any scheduled mediation. An arbitrator’s failure to render a
949 written decision within 30 days after the hearing may result in
950 the cancellation of his or her arbitration certification.
951 (l) The party who files a complaint for a trial de novo
952 shall be assessed the other party’s arbitration costs, court
953 costs, and other reasonable costs, including attorney attorney’s
954 fees, investigation expenses, and expenses for expert or other
955 testimony or evidence incurred after the arbitration hearing if
956 the judgment upon the trial de novo is not more favorable than
957 the arbitration decision. If the judgment is more favorable, the
958 party who filed a complaint for trial de novo shall be awarded
959 reasonable court costs and attorney attorney’s fees.
960 (m) Any party to an arbitration proceeding may enforce an
961 arbitration award by filing a petition in a court of competent
962 jurisdiction in which the condominium is located. A petition may
963 not be granted unless the time for appeal by the filing of a
964 complaint for trial de novo has expired. If a complaint for a
965 trial de novo has been filed, a petition may not be granted with
966 respect to an arbitration award that has been stayed. If the
967 petition for enforcement is granted, the petitioner shall
968 recover reasonable attorney attorney’s fees and costs incurred
969 in enforcing the arbitration award. A mediation settlement may
970 also be enforced through the county or circuit court, as
971 applicable, and any costs and fees incurred in the enforcement
972 of a settlement agreement reached at mediation must be awarded
973 to the prevailing party in any enforcement action.
974 Section 4. Section 718.129, Florida Statutes, is created to
975 read:
976 718.129 Fraudulent voting activities related to association
977 elections; penalties.—The following acts constitute fraudulent
978 voting activities related to association elections:
979 (1) A person who willfully, knowingly, and falsely swears
980 or affirms to an oath or affirmation, or procures another person
981 to willfully, knowingly, and falsely swear or affirm to an oath
982 or affirmation, in connection with or arising out of voting or
983 casting a ballot in an association election commits a felony of
984 the third degree, punishable as provided in s. 775.082, s.
985 775.083, or s. 775.084.
986 (2) A person who willfully and knowingly perpetrates or
987 attempts to perpetrate, or willfully and knowingly aids another
988 person in perpetrating or attempting to perpetrate, fraud in
989 connection with or arising out of a vote or ballot cast, to be
990 cast, or attempted to be cast by an elector in an association
991 election commits a felony of the third degree, punishable as
992 provided in s. 775.082, s. 775.083, or s. 775.084.
993 (3) A person who willfully, knowingly, and fraudulently
994 changes or attempts to change a vote or ballot cast, to be cast,
995 or attempted to be cast by an elector in an association election
996 to prevent such elector from voting or casting a ballot as he or
997 she intended in such election commits a felony of the third
998 degree, punishable as provided in s. 775.082, s. 775.083, or s.
999 775.084.
1000 (4)(a) A person who willfully and knowingly aids or advises
1001 another person in committing a violation of this section shall
1002 be punished as if he or she had committed the violation.
1003 (b) A person who willfully and knowingly agrees, conspires,
1004 combines, or confederates with another person in committing a
1005 violation of this section shall be punished as if he or she had
1006 committed the violation.
1007 (c) A person who willfully and knowingly aids or advises a
1008 person who has committed a violation of this section in avoiding
1009 or escaping detection, arrest, trial, or punishment shall be
1010 punished as if he or she had committed the violation. This
1011 paragraph does not prohibit a member of The Florida Bar from
1012 giving legal advice to a client.
1013 Section 5. Subsection (5) is added to section 718.3025,
1014 Florida Statutes, to read:
1015 718.3025 Agreements for operation, maintenance, or
1016 management of condominiums; specific requirements.—
1017 (5) A party contracting to provide maintenance or
1018 management services to an association managing a residential
1019 condominium after transfer of control of the association, as
1020 provided in s. 718.301, which is not a timeshare condominium
1021 association, or an officer or board member of such party, may
1022 not purchase a unit at a foreclosure sale resulting from the
1023 association’s foreclosure of association lien for unpaid
1024 assessments or take a deed in lieu of foreclosure. If 50 percent
1025 or more of the units in the condominium are owned by a party
1026 contracting to provide maintenance or management services to an
1027 association managing a residential condominium after transfer of
1028 control of the association, as provided in s. 718.301, which is
1029 not a timeshare condominium association, or by an officer or
1030 board member of such party, the contract with the party
1031 providing maintenance or management services may be cancelled by
1032 a majority vote of the unit owners other than the contracting
1033 party or an officer or board member of such party.
1034 Section 6. Section 718.3027, Florida Statutes, is created
1035 to read:
1036 718.3027 Conflicts of interest.—
1037 (1) Directors and officers of a board of an association
1038 that is not a timeshare condominium association, and the
1039 relatives of such directors and officers, must disclose to the
1040 board any activity that may reasonably be construed to be a
1041 conflict of interest. A rebuttable presumption of a conflict of
1042 interest exists if any of the following occurs without prior
1043 notice, as required in subsection (4):
1044 (a) Any director, officer, or relative of any director or
1045 officer enters into a contract for goods or services with the
1046 association.
1047 (b) Any director, officer, or relative of any director or
1048 officer holds an interest in a corporation, limited liability
1049 corporation, partnership, limited liability partnership, or
1050 other business entity that conducts business with the
1051 association or proposes to enter into a contract or other
1052 transaction with the association.
1053 (2) If any director, officer, or relative of any director
1054 or officer proposes to engage in an activity that is a conflict
1055 of interest, as described in subsection (1), the proposed
1056 activity must be listed on, and all contracts and transactional
1057 documents related to the proposed activity must be attached to,
1058 the meeting agenda. If the board votes against the proposed
1059 activity, the director, officer, or relative must notify the
1060 board in writing of his or her intention not to pursue the
1061 proposed activity, or the director or officer shall withdraw
1062 from office. If the board finds that any officer or director has
1063 violated this subsection, the officer or director shall be
1064 deemed removed from office. The vacancy shall be filled
1065 according to general law.
1066 (3) Any director, officer, or relative of any director or
1067 officer who is a party to, or has an interest in, an activity
1068 that is a possible conflict of interest, as described in
1069 subsection (1), may attend the meeting at which the activity is
1070 considered by the board, and is authorized to make a
1071 presentation to the board regarding the activity. After the
1072 presentation, the director, officer, or relative must leave the
1073 meeting during the discussion of, and the vote on, the activity.
1074 Any director or officer who is a party to, or has an interest
1075 in, the activity must recuse himself or herself from the vote.
1076 (4) The board must provide notice to unit owners of a
1077 possible conflict of interest, as described in subsection (1),
1078 in accordance with the procedures in s. 718.112(2)(c). All
1079 contracts and transactional documents related to the possible
1080 conflict of interest must be attached to, and made available
1081 with, the meeting agenda.
1082 (5) Any contract entered into between any director,
1083 officer, or relative of any director or officer and the
1084 association which has not been properly disclosed as a conflict
1085 of interest or potential conflict of interest as required by s.
1086 718.111(12)(g) is voidable and terminates upon the filing of a
1087 written notice terminating the contract with the board of
1088 directors which contains the consent of at least 20 percent of
1089 the voting interests of the association.
1090 Section 7. Subsection (5) of section 718.303, Florida
1091 Statutes, is amended, and subsection (8) is added to that
1092 section, to read:
1093 718.303 Obligations of owners and occupants; remedies.—
1094 (5) An association may suspend the voting rights of a unit
1095 owner or member due to nonpayment of any fee, fine, or other
1096 monetary obligation due to the association which is more than
1097 $1,000 and more than 90 days delinquent. Proof of such
1098 obligation must be provided to the unit owner or member 30 days
1099 before such suspension takes effect. A voting interest or
1100 consent right allocated to a unit owner or member which has been
1101 suspended by the association shall be subtracted from the total
1102 number of voting interests in the association, which shall be
1103 reduced by the number of suspended voting interests when
1104 calculating the total percentage or number of all voting
1105 interests available to take or approve any action, and the
1106 suspended voting interests shall not be considered for any
1107 purpose, including, but not limited to, the percentage or number
1108 of voting interests necessary to constitute a quorum, the
1109 percentage or number of voting interests required to conduct an
1110 election, or the percentage or number of voting interests
1111 required to approve an action under this chapter or pursuant to
1112 the declaration, articles of incorporation, or bylaws. The
1113 suspension ends upon full payment of all obligations currently
1114 due or overdue the association. The notice and hearing
1115 requirements under subsection (3) do not apply to a suspension
1116 imposed under this subsection.
1117 (8) A receiver may not exercise voting rights of any unit
1118 owner whose unit is placed in receivership for the benefit of
1119 the association pursuant to this chapter.
1120 Section 8. Subsection (5) of section 718.5012, Florida
1121 Statutes, is amended to read:
1122 718.5012 Ombudsman; powers and duties.—The ombudsman shall
1123 have the powers that are necessary to carry out the duties of
1124 his or her office, including the following specific powers:
1125 (5) To monitor and review procedures and disputes
1126 concerning condominium elections or meetings, including, but not
1127 limited to, recommending that the division pursue enforcement
1128 action in any manner where there is reasonable cause to believe
1129 that election misconduct has occurred and reviewing secret
1130 ballots cast at a vote of the association.
1131 Section 9. Section 718.71, Florida Statutes, is created to
1132 read:
1133 718.71 Financial reporting.—An association shall provide an
1134 annual report to the department containing the names of all of
1135 the financial institutions with which it maintains accounts, and
1136 a copy of such report may be obtained from the department upon
1137 written request of any association member.
1138 Section 10. This act shall take effect July 1, 2017.
1139
1140 ================= T I T L E A M E N D M E N T ================
1141 And the title is amended as follows:
1142 Delete everything before the enacting clause
1143 and insert:
1144 A bill to be entitled
1145 An act relating to condominiums; amending s. 718.111,
1146 F.S.; prohibiting an association from hiring an
1147 attorney that represents the management company of the
1148 association; prohibiting a board member, manager, or
1149 management company from purchasing a unit at a
1150 foreclosure sale under certain circumstances;
1151 providing recordkeeping requirements; providing that
1152 the official records of an association are open to
1153 inspection by unit renters; providing that a renter of
1154 a unit has a right to inspect and copy the
1155 association’s bylaws and rules; providing criminal
1156 penalties; providing a definition; providing
1157 requirements relating to the posting of specified
1158 documents on an association’s website; providing a
1159 remedy for an association’s failure to provide a unit
1160 owner with a copy of the most recent financial report;
1161 requiring the Division of Florida Condominiums,
1162 Timeshares, and Mobile Homes to maintain and provide
1163 copies of financial reports; amending s. 718.112,
1164 F.S.; providing board member term limits; providing an
1165 exception; deleting certification requirements
1166 relating to the recall of board members; revising the
1167 amount of time in which a recalled board member must
1168 turn over records and property of the association to
1169 the board; prohibiting certain associations from
1170 employing or contracting with a service provider that
1171 is owned or operated by certain persons; amending s.
1172 718.1255, F.S.; authorizing, rather than requiring,
1173 the division to employ full-time attorneys to conduct
1174 certain arbitration hearings; providing requirements
1175 for the certification of arbitrators; prohibiting the
1176 Department of Business and Professional Regulation
1177 from entering into a legal services contract for
1178 certain arbitration hearings; requiring the division
1179 to assign or enter into contracts with arbitrators;
1180 requiring arbitrators to conduct hearings within a
1181 specified period; providing an exception; providing
1182 arbitration proceeding requirements; creating s.
1183 718.129, F.S.; providing that certain activities
1184 constitute fraudulent voting activities related to
1185 association elections; providing criminal penalties;
1186 amending s. 718.3025, F.S.; prohibiting specified
1187 parties from purchasing a unit at a foreclosure sale
1188 resulting from the association’s foreclosure of
1189 association lien for unpaid assessments or from taking
1190 a deed in lieu of foreclosures; authorizing a contract
1191 with a party providing maintenance or management
1192 services to be cancelled by a majority vote of certain
1193 unit owners under specified conditions; creating s.
1194 718.3027, F.S.; providing requirements relating to
1195 board director and officer conflicts of interest;
1196 providing that certain contracts are voidable if they
1197 do not meet specified notice requirements and
1198 terminate, subject to a certain condition; amending s.
1199 718.303, F.S.; providing requirements relating to the
1200 suspension of voting rights of unit owners and
1201 members; prohibiting a receiver from exercising the
1202 voting rights of a unit owner whose unit is placed in
1203 receivership; amending s. 718.5012, F.S.; providing
1204 the ombudsman with an additional power; creating s.
1205 718.71, F.S.; providing financial reporting
1206 requirements of an association; providing an effective
1207 date.