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CHAPTER
720
HOMEOWNERS'
ASSOCIATIONS
PART
I
GENERAL
PROVISIONS (ss. 720.301-720.312)
PART
II
DISCLOSURE
PRIOR TO SALE OF RESIDENTIAL PARCELS (ss. 720.401, 720.402)
PART
III
COVENANT
REVITALIZATION (ss. 720.403-720.407)
PART
I
GENERAL
PROVISIONS
720.301 Definitions.
720.302 Purposes, scope, and
application.
720.303 Association powers
and duties; meetings of board; official records; budgets; financial reporting;
association funds; recalls.
720.304 Right of owners to
peaceably assemble; display of flag; SLAPP suits prohibited.
720.305 Obligations of
members; remedies at law or in equity; levy of fines and suspension of use
rights; failure to fill sufficient number of vacancies on board of directors to
constitute a quorum; appointment of receiver upon petition of any member.
720.3055 Contracts for
products and services; in writing; bids; exceptions.
720.306 Meetings of members;
voting and election procedures; amendments.
720.307 Transition of
association control in a community.
720.3075 Prohibited clauses
in association documents.
720.308 Assessments and
charges.
720.3086 Financial report.
720.309 Agreements entered
into by the association.
720.31 Recreational
leaseholds; right to acquire; escalation clauses.
720.311 Dispute resolution.
720.312 Declaration of
covenants; survival after tax deed or foreclosure.
720.301 Definitions.--As
used in this chapter, the term:
(1) "Assessment"
or "amenity fee" means a sum or sums of money payable to the
association, to the developer or other owner of common areas, or to
recreational facilities and other properties serving the parcels by the owners
of one or more parcels as authorized in the governing documents, which if not
paid by the owner of a parcel, can result in a lien against the parcel.
(2) "Common
area" means all real property within a community which is owned or leased
by an association or dedicated for use or maintenance by the association or its
members, including, regardless of whether title has been conveyed to the
association:
(a) Real property the
use of which is dedicated to the association or its members by a recorded plat;
or
(b) Real property
committed by a declaration of covenants to be leased or conveyed to the
association.
(3) "Community"
means the real property that is or will be subject to a declaration of
covenants which is recorded in the county where the property is located. The
term "community" includes all real property, including undeveloped
phases, that is or was the subject of a development-of-regional-impact
development order, together with any approved modification thereto.
(4) "Declaration of
covenants," or "declaration," means a recorded written
instrument in the nature of covenants running with the land which subjects the
land comprising the community to the jurisdiction and control of an association
or associations in which the owners of the parcels, or their association
representatives, must be members.
(5) "Department"
means the Department of Business and Professional Regulation.
(6) "Developer"
means a person or entity that:
(a) Creates the
community served by the association; or
(b) Succeeds to the
rights and liabilities of the person or entity that created the community
served by the association, provided that such is evidenced in writing.
(7) "Division"
means the Division of Florida Land Sales, Condominiums, and Mobile Homes in the
Department of Business and Professional Regulation.
(8) "Governing
documents" means:
(a) The recorded
declaration of covenants for a community, and all duly adopted and recorded
amendments, supplements, and recorded exhibits thereto; and
(b) The articles of
incorporation and bylaws of the homeowners' association, and any duly adopted
amendments thereto.
(9) "Homeowners'
association" or "association" means a Florida corporation
responsible for the operation of a community or a mobile home subdivision in which
the voting membership is made up of parcel owners or their agents, or a
combination thereof, and in which membership is a mandatory condition of parcel
ownership, and which is authorized to impose assessments that, if unpaid, may
become a lien on the parcel. The term "homeowners' association" does
not include a community development district or other similar special taxing
district created pursuant to statute.
(10) "Member"
means a member of an association, and may include, but is not limited to, a parcel
owner or an association representing parcel owners or a combination thereof,
and includes any person or entity obligated by the governing documents to pay
an assessment or amenity fee.
(11) "Parcel"
means a platted or unplatted lot, tract, unit, or other subdivision of real
property within a community, as described in the declaration:
(a) Which is capable of
separate conveyance; and
(b) Of which the parcel
owner, or an association in which the parcel owner must be a member, is
obligated:
1. By the governing
documents to be a member of an association that serves the community; and
2. To pay to the
homeowners' association assessments that, if not paid, may result in a lien.
(12) "Parcel
owner" means the record owner of legal title to a parcel.
(13) "Voting
interest" means the voting rights distributed to the members of the
homeowners' association, pursuant to the governing documents.
History.--s. 33, ch. 92-49; s. 52, ch. 95-274; s. 4, ch.
99-382; s. 44, ch. 2000-258; s. 16, ch. 2004-345; s. 13, ch. 2004-353.
Note.--Former s. 617.301.
720.302 Purposes, scope,
and application.--
(1) The purposes of this
chapter are to give statutory recognition to corporations not for profit that
operate residential communities in this state, to provide procedures for
operating homeowners' associations, and to protect the rights of association
members without unduly impairing the ability of such associations to perform
their functions.
(2) The Legislature
recognizes that it is not in the best interest of homeowners' associations or
the individual association members thereof to create or impose a bureau or
other agency of state government to regulate the affairs of homeowners'
associations. However, in accordance with s. 720.311, the Legislature finds
that homeowners' associations and their individual members will benefit from an
expedited alternative process for resolution of election and recall disputes
and presuit mediation of other disputes involving covenant enforcement and
authorizes the department to hear, administer, and determine these disputes as
more fully set forth in this chapter. Further, the Legislature recognizes that
certain contract rights have been created for the benefit of homeowners'
associations and members thereof before the effective date of this act and that
ss. 720.301-720.407 are not intended to impair such contract rights, including,
but not limited to, the rights of the developer to complete the community as initially
contemplated.
(3) This chapter does
not apply to:
(a) A community that is
composed of property primarily intended for commercial, industrial, or other
nonresidential use; or
(b) The commercial or
industrial parcels in a community that contains both residential parcels and
parcels intended for commercial or industrial use.
(4) This chapter does
not apply to any association that is subject to regulation under chapter 718,
chapter 719, or chapter 721; or to any nonmandatory association formed under
chapter 723.
(5) Unless expressly
stated to the contrary, corporations not for profit that operate residential
homeowners' associations in this state shall be governed by and subject to
chapter 617 and this chapter. This subsection is intended to clarify existing
law.
History.--s. 34, ch. 92-49; s. 53, ch. 95-274; s. 45, ch.
2000-258; s. 11, ch. 2003-14; s. 17, ch. 2004-345; s. 14, ch. 2004-353.
Note.--Former s. 617.302.
720.303 Association powers
and duties; meetings of board; official records; budgets; financial reporting;
association funds; recalls.--
(1) POWERS AND
DUTIES.--An association which operates a community as defined in s. 720.301,
must be operated by an association that is a Florida corporation. After October
1, 1995, the association must be incorporated and the initial governing
documents must be recorded in the official records of the county in which the
community is located. An association may operate more than one community. The
officers and directors of an association have a fiduciary relationship to the
members who are served by the association. The powers and duties of an
association include those set forth in this chapter and, except as expressly
limited or restricted in this chapter, those set forth in the governing documents.
After control of the association is obtained by members other than the
developer, the association may institute, maintain, settle, or appeal actions
or hearings in its name on behalf of all members concerning matters of common
interest to the members, including, but not limited to, the common areas; roof
or structural components of a building, or other improvements for which the
association is responsible; mechanical, electrical, or plumbing elements
serving an improvement or building for which the association is responsible;
representations of the developer pertaining to any existing or proposed
commonly used facility; and protesting ad valorem taxes on commonly used
facilities. The association may defend actions in eminent domain or bring
inverse condemnation actions. Before commencing litigation against any party in
the name of the association involving amounts in controversy in excess of
$100,000, the association must obtain the affirmative approval of a majority of
the voting interests at a meeting of the membership at which a quorum has been
attained. This subsection does not limit any statutory or common-law right of
any individual member or class of members to bring any action without
participation by the association. A member does not have authority to act for
the association by virtue of being a member. An association may have more than
one class of members and may issue membership certificates. An association of
15 or fewer parcel owners may enforce only the requirements of those deed
restrictions established prior to the purchase of each parcel upon an affected
parcel owner or owners.
1(2) BOARD
MEETINGS.--
(a) A meeting of the
board of directors of an association occurs whenever a quorum of the board
gathers to conduct association business. All meetings of the board must be open
to all members except for meetings between the board and its attorney with
respect to proposed or pending litigation where the contents of the discussion
would otherwise be governed by the attorney-client privilege.
(b) Members have the
right to attend all meetings of the board and to speak on any matter placed on
the agenda by petition of the voting interests for at least 3 minutes. The
association may adopt written reasonable rules expanding the right of members
to speak and governing the frequency, duration, and other manner of member
statements, which rules must be consistent with this paragraph and may include
a sign-up sheet for members wishing to speak. Notwithstanding any other law,
the requirement that board meetings and committee meetings be open to the
members is inapplicable to meetings between the board or a committee and the
association's attorney, with respect to meetings of the board held for the
purpose of discussing personnel matters.
(c) The bylaws shall
provide for giving notice to parcel owners and members of all board meetings
and, if they do not do so, shall be deemed to provide the following:
1. Notices of all board
meetings must be posted in a conspicuous place in the community at least 48 hours
in advance of a meeting, except in an emergency. In the alternative, if notice
is not posted in a conspicuous place in the community, notice of each board
meeting must be mailed or delivered to each member at least 7 days before the
meeting, except in an emergency. Notwithstanding this general notice
requirement, for communities with more than 100 members, the bylaws may provide
for a reasonable alternative to posting or mailing of notice for each board
meeting, including publication of notice, provision of a schedule of board
meetings, or the conspicuous posting and repeated broadcasting of the notice on
a closed-circuit cable television system serving the homeowners' association.
However, if broadcast notice is used in lieu of a notice posted physically in
the community, the notice must be broadcast at least four times every broadcast
hour of each day that a posted notice is otherwise required. When broadcast
notice is provided, the notice and agenda must be broadcast in a manner and for
a sufficient continuous length of time so as to allow an average reader to
observe the notice and read and comprehend the entire content of the notice and
the agenda. The bylaws or amended bylaws may provide for giving notice by
electronic transmission in a manner authorized by law for meetings of the board
of directors, committee meetings requiring notice under this section, and
annual and special meetings of the members; however, a member must consent in
writing to receiving notice by electronic transmission.
22. An assessment
may not be levied at a board meeting unless the notice of the meeting includes
a statement that assessments will be considered and the nature of the
assessments. Written notice of any meeting at which special assessments will be
considered or at which amendments to rules regarding parcel use will be
considered must be mailed, delivered, or electronically transmitted to the
members and parcel owners and posted conspicuously on the property or broadcast
on closed-circuit cable television not less than 14 days before the meeting.
3. Directors may not
vote by proxy or by secret ballot at board meetings, except that secret ballots
may be used in the election of officers. This subsection also applies to the
meetings of any committee or other similar body, when a final decision will be
made regarding the expenditure of association funds, and to any body vested
with the power to approve or disapprove architectural decisions with respect to
a specific parcel of residential property owned by a member of the community.
(d) If 20 percent of the
total voting interests petition the board to address an item of business, the
board shall at its next regular board meeting or at a special meeting of the
board, but not later than 60 days after the receipt of the petition, take the
petitioned item up on an agenda. The board shall give all members notice of the
meeting at which the petitioned item shall be addressed in accordance with the
14-day notice requirement pursuant to subparagraph (c)2. Each member shall have
the right to speak for at least 3 minutes on each matter placed on the agenda
by petition, provided that the member signs the sign-up sheet, if one is
provided, or submits a written request to speak prior to the meeting. Other
than addressing the petitioned item at the meeting, the board is not obligated
to take any other action requested by the petition.
(3) MINUTES.--Minutes of
all meetings of the members of an association and of the board of directors of
an association must be maintained in written form or in another form that can
be converted into written form within a reasonable time. A vote or abstention
from voting on each matter voted upon for each director present at a board
meeting must be recorded in the minutes.
(4) OFFICIAL
RECORDS.--The association shall maintain each of the following items, when
applicable, which constitute the official records of the association:
(a) Copies of any plans,
specifications, permits, and warranties related to improvements constructed on
the common areas or other property that the association is obligated to
maintain, repair, or replace.
(b) A copy of the bylaws
of the association and of each amendment to the bylaws.
(c) A copy of the
articles of incorporation of the association and of each amendment thereto.
(d) A copy of the
declaration of covenants and a copy of each amendment thereto.
(e) A copy of the
current rules of the homeowners' association.
(f) The minutes of all
meetings of the board of directors and of the members, which minutes must be
retained for at least 7 years.
(g) A current roster of
all members and their mailing addresses and parcel identifications. The
association shall also maintain the electronic mailing addresses and the
numbers designated by members for receiving notice sent by electronic
transmission of those members consenting to receive notice by electronic
transmission. The electronic mailing addresses and numbers provided by unit owners
to receive notice by electronic transmission shall be removed from association
records when consent to receive notice by electronic transmission is revoked.
However, the association is not liable for an erroneous disclosure of the
electronic mail address or the number for receiving electronic transmission of
notices.
(h) All of the
association's insurance policies or a copy thereof, which policies must be
retained for at least 7 years.
(i) A current copy of
all contracts to which the association is a party, including, without
limitation, any management agreement, lease, or other contract under which the
association has any obligation or responsibility. Bids received by the
association for work to be performed must also be considered official records
and must be kept for a period of 1 year.
(j) The financial and
accounting records of the association, kept according to good accounting
practices. All financial and accounting records must be maintained for a period
of at least 7 years. The financial and accounting records must include:
1. Accurate, itemized,
and detailed records of all receipts and expenditures.
2. A current account and
a periodic statement of the account for each member, designating the name and
current address of each member who is obligated to pay assessments, the due
date and amount of each assessment or other charge against the member, the date
and amount of each payment on the account, and the balance due.
3. All tax returns,
financial statements, and financial reports of the association.
4. Any other records
that identify, measure, record, or communicate financial information.
(k) A copy of the
disclosure summary described in s. 720.401(1).
(l) All other written
records of the association not specifically included in the foregoing which are
related to the operation of the association.
(5) INSPECTION AND
COPYING OF RECORDS.--The official records shall be maintained within the state
and must be open to inspection and available for photocopying by members or
their authorized agents at reasonable times and places within 10 business days
after receipt of a written request for access. This subsection may be complied
with by having a copy of the official records available for inspection or
copying in the community. If the association has a photocopy machine available
where the records are maintained, it must provide parcel owners with copies on
request during the inspection if the entire request is limited to no more than
25 pages.
(a) The failure of an
association to provide access to the records within 10 business days after
receipt of a written request creates a rebuttable presumption that the
association willfully failed to comply with this subsection.
(b) A member who is
denied access to official records is entitled to the actual damages or minimum
damages for the association's willful failure to comply with this subsection.
The minimum damages are to be $50 per calendar day up to 10 days, the
calculation to begin on the 11th business day after receipt of the written request.
(c) The association may
adopt reasonable written rules governing the frequency, time, location, notice,
records to be inspected, and manner of inspections, but may not impose a
requirement that a parcel owner demonstrate any proper purpose for the
inspection, state any reason for the inspection, or limit a parcel owner's
right to inspect records to less than one 8-hour business day per month. The
association may impose fees to cover the costs of providing copies of the
official records, including, without limitation, the costs of copying. The
association may charge up to 50 cents per page for copies made on the
association's photocopier. If the association does not have a photocopy machine
available where the records are kept, or if the records requested to be copied
exceed 25 pages in length, the association may have copies made by an outside
vendor and may charge the actual cost of copying. The association shall
maintain an adequate number of copies of the recorded governing documents, to
ensure their availability to members and prospective members. Notwithstanding
the provisions of this paragraph, the following records shall not be accessible
to members or parcel owners:
1. Any record protected
by the lawyer-client privilege as described in s. 90.502 and any record
protected by the work-product privilege, including, but not limited to, any
record prepared by an association attorney or prepared at the attorney's
express direction which reflects a mental impression, conclusion, litigation
strategy, or legal theory of the attorney or the association and was prepared
exclusively for civil or criminal litigation or for adversarial administrative
proceedings or which was prepared in anticipation of imminent civil or criminal
litigation or imminent adversarial administrative proceedings until the
conclusion of the litigation or adversarial administrative proceedings.
2. Information obtained
by an association in connection with the approval of the lease, sale, or other
transfer of a parcel.
3. Disciplinary, health,
insurance, and personnel records of the association's employees.
4. Medical records of
parcel owners or community residents.
(6) BUDGETS.--The
association shall prepare an annual budget. The budget must reflect the
estimated revenues and expenses for that year and the estimated surplus or
deficit as of the end of the current year. The budget must set out separately
all fees or charges for recreational amenities, whether owned by the
association, the developer, or another person. The association shall provide
each member with a copy of the annual budget or a written notice that a copy of
the budget is available upon request at no charge to the member. The copy must
be provided to the member within the time limits set forth in subsection (5).
(7) FINANCIAL
REPORTING.--The association shall prepare an annual financial report within 60
days after the close of the fiscal year. The association shall, within the time
limits set forth in subsection (5), provide each member with a copy of the
annual financial report or a written notice that a copy of the financial report
is available upon request at no charge to the member. Financial reports shall
be prepared as follows:
(a) An association that
meets the criteria of this paragraph shall prepare or cause to be prepared a
complete set of financial statements in accordance with generally accepted
accounting principles. The financial statements shall be based upon the
association's total annual revenues, as follows:
1. An association with
total annual revenues of $100,000 or more, but less than $200,000, shall
prepare compiled financial statements.
2. An association with
total annual revenues of at least $200,000, but less than $400,000, shall
prepare reviewed financial statements.
3. An association with
total annual revenues of $400,000 or more shall prepare audited financial
statements.
(b)1. An association
with total annual revenues of less than $100,000 shall prepare a report of cash
receipts and expenditures.
2. An association in a
community of fewer than 50 parcels, regardless of the association's annual
revenues, may prepare a report of cash receipts and expenditures in lieu of
financial statements required by paragraph (a) unless the governing documents
provide otherwise.
3. A report of cash
receipts and disbursement must disclose the amount of receipts by accounts and
receipt classifications and the amount of expenses by accounts and expense
classifications, including, but not limited to, the following, as applicable:
costs for security, professional, and management fees and expenses; taxes;
costs for recreation facilities; expenses for refuse collection and utility
services; expenses for lawn care; costs for building maintenance and repair;
insurance costs; administration and salary expenses; and reserves if maintained
by the association.
(c) If 20 percent of the
parcel owners petition the board for a level of financial reporting higher than
that required by this section, the association shall duly notice and hold a
meeting of members within 30 days of receipt of the petition for the purpose of
voting on raising the level of reporting for that fiscal year. Upon approval of
a majority of the total voting interests of the parcel owners, the association
shall prepare or cause to be prepared, shall amend the budget or adopt a
special assessment to pay for the financial report regardless of any provision
to the contrary in the governing documents, and shall provide within 90 days of
the meeting or the end of the fiscal year, whichever occurs later:
1. Compiled, reviewed,
or audited financial statements, if the association is otherwise required to
prepare a report of cash receipts and expenditures;
2. Reviewed or audited
financial statements, if the association is otherwise required to prepare
compiled financial statements; or
3. Audited financial
statements if the association is otherwise required to prepare reviewed
financial statements.
(d) If approved by a
majority of the voting interests present at a properly called meeting of the
association, an association may prepare or cause to be prepared:
1. A report of cash
receipts and expenditures in lieu of a compiled, reviewed, or audited financial
statement;
2. A report of cash
receipts and expenditures or a compiled financial statement in lieu of a
reviewed or audited financial statement; or
3. A report of cash
receipts and expenditures, a compiled financial statement, or a reviewed
financial statement in lieu of an audited financial statement.
(8) ASSOCIATION FUNDS;
COMMINGLING.--
(a) All association
funds held by a developer shall be maintained separately in the association's
name. Reserve and operating funds of the association shall not be commingled
prior to turnover except the association may jointly invest reserve funds;
however, such jointly invested funds must be accounted for separately.
(b) No developer in
control of a homeowners' association shall commingle any association funds with
his or her funds or with the funds of any other homeowners' association or
community association.
(c) Association funds
may not be used by a developer to defend a civil or criminal action,
administrative proceeding, or arbitration proceeding that has been filed
against the developer or directors appointed to the association board by the
developer, even when the subject of the action or proceeding concerns the
operation of the developer-controlled association.
(9) APPLICABILITY.--Sections
617.1601-617.1604 do not apply to a homeowners' association in which the
members have the inspection and copying rights set forth in this section.
(10) RECALL OF
DIRECTORS.--
(a)1. Regardless of any
provision to the contrary contained in the governing documents, subject to the
provisions of s. 720.307 regarding transition of association control, any
member of the board of directors may be recalled and removed from office with
or without cause by a majority of the total voting interests.
2. When the governing
documents, including the declaration, articles of incorporation, or bylaws,
provide that only a specific class of members is entitled to elect a board
director or directors, only that class of members may vote to recall those
board directors so elected.
(b)1. Board directors
may be recalled by an agreement in writing or by written ballot without a
membership meeting. The agreement in writing or the written ballots, or a copy
thereof, shall be served on the association by certified mail or by personal
service in the manner authorized by chapter 48 and the Florida Rules of Civil
Procedure.
2. The board shall duly
notice and hold a meeting of the board within 5 full business days after
receipt of the agreement in writing or written ballots. At the meeting, the
board shall either certify the written ballots or written agreement to recall a
director or directors of the board, in which case such director or directors
shall be recalled effective immediately and shall turn over to the board within
5 full business days any and all records and property of the association in
their possession, or proceed as described in paragraph (d).
3. When it is determined
by the department pursuant to binding arbitration proceedings that an initial
recall effort was defective, written recall agreements or written ballots used
in the first recall effort and not found to be defective may be reused in one
subsequent recall effort. However, in no event is a written agreement or
written ballot valid for more than 120 days after it has been signed by the
member.
4. Any rescission or
revocation of a member's written recall ballot or agreement must be in writing
and, in order to be effective, must be delivered to the association before the
association is served with the written recall agreements or ballots.
5. The agreement in
writing or ballot shall list at least as many possible replacement directors as
there are directors subject to the recall, when at least a majority of the
board is sought to be recalled; the person executing the recall instrument may
vote for as many replacement candidates as there are directors subject to the
recall.
(c)1. If the
declaration, articles of incorporation, or bylaws specifically provide, the
members may also recall and remove a board director or directors by a vote
taken at a meeting. If so provided in the governing documents, a special
meeting of the members to recall a director or directors of the board of
administration may be called by 10 percent of the voting interests giving
notice of the meeting as required for a meeting of members, and the notice shall
state the purpose of the meeting. Electronic transmission may not be used as a
method of giving notice of a meeting called in whole or in part for this
purpose.
2. The board shall duly
notice and hold a board meeting within 5 full business days after the
adjournment of the member meeting to recall one or more directors. At the
meeting, the board shall certify the recall, in which case such member or
members shall be recalled effective immediately and shall turn over to the
board within 5 full business days any and all records and property of the
association in their possession, or shall proceed as set forth in subparagraph
(d).
(d) If the board
determines not to certify the written agreement or written ballots to recall a
director or directors of the board or does not certify the recall by a vote at
a meeting, the board shall, within 5 full business days after the meeting, file
with the department a petition for binding arbitration pursuant to the
applicable procedures in ss. 718.112(2)(j) and 718.1255 and the rules adopted
thereunder. For the purposes of this section, the members who voted at the
meeting or who executed the agreement in writing shall constitute one party
under the petition for arbitration. If the arbitrator certifies the recall as
to any director or directors of the board, the recall will be effective upon
mailing of the final order of arbitration to the association. The director or
directors so recalled shall deliver to the board any and all records of the
association in their possession within 5 full business days after the effective
date of the recall.
(e) If a vacancy occurs
on the board as a result of a recall and less than a majority of the board
directors are removed, the vacancy may be filled by the affirmative vote of a
majority of the remaining directors, notwithstanding any provision to the
contrary contained in this subsection or in the association documents. If
vacancies occur on the board as a result of a recall and a majority or more of
the board directors are removed, the vacancies shall be filled by members
voting in favor of the recall; if removal is at a meeting, any vacancies shall
be filled by the members at the meeting. If the recall occurred by agreement in
writing or by written ballot, members may vote for replacement directors in the
same instrument in accordance with procedural rules adopted by the division,
which rules need not be consistent with this subsection.
(f) If the board fails
to duly notice and hold a board meeting within 5 full business days after
service of an agreement in writing or within 5 full business days after the
adjournment of the member recall meeting, the recall shall be deemed effective
and the board directors so recalled shall immediately turn over to the board
all records and property of the association.
(g) If a director who is
removed fails to relinquish his or her office or turn over records as required
under this section, the circuit court in the county where the association
maintains its principal office may, upon the petition of the association,
summarily order the director to relinquish his or her office and turn over all
association records upon application of the association.
(h) The minutes of the
board meeting at which the board decides whether to certify the recall are an
official association record. The minutes must record the date and time of the
meeting, the decision of the board, and the vote count taken on each board
member subject to the recall. In addition, when the board decides not to
certify the recall, as to each vote rejected, the minutes must identify the
parcel number and the specific reason for each such rejection.
(i) When the recall of
more than one board director is sought, the written agreement, ballot, or vote
at a meeting shall provide for a separate vote for each board director sought
to be recalled.
History.--s. 35, ch. 92-49; s. 54, ch. 95-274; s. 1, ch.
97-311; s. 1, ch. 98-261; s. 46, ch. 2000-258; s. 12, ch. 2003-14; s. 3, ch.
2003-79; ss. 2, 18, ch. 2004-345; s. 15, ch. 2004-353; s. 135, ch. 2005-2.
1Note.--As amended by s. 18, ch. 2004-345, and s. 135, ch.
2005-2. For a description of multiple provisions in the same session affecting
a statutory provision, see preface to the Florida Statutes, "Statutory
Construction." Subsection (2) was also amended by s. 2, ch. 2004-345, and
that version reads:
(2) BOARD
MEETINGS.--A meeting of the board of directors of an association occurs
whenever a quorum of the board gathers to conduct association business. All
meetings of the board must be open to all members except for meetings between
the board and its attorney with respect to proposed or pending litigation where
the contents of the discussion would otherwise be governed by the
attorney-client privilege. Notices of all board meetings must be posted in a
conspicuous place in the community at least 48 hours in advance of a meeting,
except in an emergency. In the alternative, if notice is not posted in a
conspicuous place in the community, notice of each board meeting must be mailed
or delivered to each member at least 7 days before the meeting, except in an
emergency. Notwithstanding this general notice requirement, for communities
with more than 100 members, the bylaws may provide for a reasonable alternative
to posting or mailing of notice for each board meeting, including publication
of notice, provision of a schedule of board meetings, or the conspicuous
posting and repeated broadcasting of the notice on a closed-circuit cable
television system serving the homeowners' association. However, if broadcast
notice is used in lieu of a notice posted physically in the community, the
notice must be broadcast at least four times every broadcast hour of each day
that a posted notice is otherwise required. When broadcast notice is provided,
the notice and agenda must be broadcast in a manner and for a sufficient
continuous length of time so as to allow an average reader to observe the
notice and read and comprehend the entire content of the notice and the agenda.
The bylaws or amended bylaws may provide for giving notice by electronic
transmission in a manner authorized by law for meetings of the board of
directors, committee meetings requiring notice under this section, and annual
and special meetings of the members; however, a member must consent in writing
to receiving notice by electronic transmission. An assessment may not be levied
at a board meeting unless a written notice of the meeting is provided to all
members at least 14 days before the meeting, which notice includes a statement
that assessments will be considered at the meeting and the nature of the
assessments. Rules that regulate the use of parcels in the community may not be
adopted, amended, or revoked at a board meeting unless a written meeting notice
is provided to all members at least 14 days before the meeting, which notice
includes a statement that changes to the rules regarding the use of parcels
will be considered at the meeting. Directors may not vote by proxy or by secret
ballot at board meetings, except that secret ballots may be used in the
election of officers. This subsection also applies to the meetings of any
committee or other similar body, when a final decision will be made regarding
the expenditure of association funds, and to any body vested with the power to
approve or disapprove architectural decisions with respect to a specific parcel
of residential property owned by a member of the community.
2Note.--As amended by s. 18, ch. 2004-345. For a description
of multiple acts in the same session affecting a statutory provision, see
preface to the Florida Statutes, "Statutory Construction."
Subparagraph (2)(c)2. was also amended by s. 15, ch. 2004-353, and that version
reads:
2. An
assessment may not be levied at a board meeting unless a written notice of the
meeting is provided to all members at least 14 days before the meeting, which
notice includes a statement that assessments will be considered at the meeting
and the nature of the assessments. Written notice of any meeting at which special
assessments will be considered or at which rules that regulate the use of
parcels in the community may be adopted, amended, or revoked must be mailed,
delivered, or electronically transmitted to the members and parcel owners and
posted conspicuously on the property or broadcast on closed-circuit cable
television not less than 14 days before the meeting. A written notice
concerning changes to the rules that regulate the use of parcels in the
community must include a statement that changes to the rules regarding the use
of parcels will be considered at the meeting.
Note.--Former s. 617.303.
720.304 Right of owners to
peaceably assemble; display of flag; SLAPP suits prohibited.--
(1) All common areas and
recreational facilities serving any homeowners' association shall be available
to parcel owners in the homeowners' association served thereby and their
invited guests for the use intended for such common areas and recreational
facilities. The entity or entities responsible for the operation of the common
areas and recreational facilities may adopt reasonable rules and regulations
pertaining to the use of such common areas and recreational facilities. No
entity or entities shall unreasonably restrict any parcel owner's right to
peaceably assemble or right to invite public officers or candidates for public
office to appear and speak in common areas and recreational facilities.
(2) Any homeowner may
display one portable, removable United States flag or official flag of the
State of Florida in a respectful manner, and on Armed Forces Day, Memorial Day,
Flag Day, Independence Day, and Veterans Day may display in a respectful manner
portable, removable official flags, not larger than 41/2
feet by 6 feet, which represent the United States Army, Navy, Air Force, Marine
Corps, or Coast Guard, regardless of any declaration rules or requirements
dealing with flags or decorations.
(3) Any owner prevented
from exercising rights guaranteed by subsection (1) or subsection (2) may bring
an action in the appropriate court of the county in which the alleged
infringement occurred, and, upon favorable adjudication, the court shall enjoin
the enforcement of any provision contained in any homeowners' association
document or rule that operates to deprive the owner of such rights.
(4) It is the intent of
the Legislature to protect the right of parcel owners to exercise their rights
to instruct their representatives and petition for redress of grievances before
the various governmental entities of this state as protected by the First
Amendment to the United States Constitution and s. 5, Art. I of the State
Constitution. The Legislature recognizes that "Strategic Lawsuits Against
Public Participation" or "SLAPP" suits, as they are typically
called, have occurred when members are sued by individuals, business entities,
or governmental entities arising out of a parcel owner's appearance and
presentation before a governmental entity on matters related to the homeowners'
association. However, it is the public policy of this state that government
entities, business organizations, and individuals not engage in SLAPP suits
because such actions are inconsistent with the right of parcel owners to
participate in the state's institutions of government. Therefore, the
Legislature finds and declares that prohibiting such lawsuits by governmental
entities, business entities, and individuals against parcel owners who address
matters concerning their homeowners' association will preserve this fundamental
state policy, preserve the constitutional rights of parcel owners, and assure
the continuation of representative government in this state. It is the intent
of the Legislature that such lawsuits be expeditiously disposed of by the
courts.
(a) As used in this
subsection, the term "governmental entity" means the state, including
the executive, legislative, and judicial branches of government, the
independent establishments of the state, counties, municipalities, districts,
authorities, boards, or commissions, or any agencies of these branches which are
subject to chapter 286.
(b) A governmental
entity, business organization, or individual in this state may not file or
cause to be filed through its employees or agents any lawsuit, cause of action,
claim, cross-claim, or counterclaim against a parcel owner without merit and
solely because such parcel owner has exercised the right to instruct his or her
representatives or the right to petition for redress of grievances before the
various governmental entities of this state, as protected by the First Amendment
to the United States Constitution and s. 5, Art. I of the State Constitution.
(c) A parcel owner sued
by a governmental entity, business organization, or individual in violation of
this section has a right to an expeditious resolution of a claim that the suit
is in violation of this section. A parcel owner may petition the court for an
order dismissing the action or granting final judgment in favor of that parcel
owner. The petitioner may file a motion for summary judgment, together with
supplemental affidavits, seeking a determination that the governmental
entity's, business organization's, or individual's lawsuit has been brought in
violation of this section. The governmental entity, business organization, or
individual shall thereafter file its response and any supplemental affidavits.
As soon as practicable, the court shall set a hearing on the petitioner's
motion, which shall be held at the earliest possible time after the filing of
the governmental entity's, business organization's or individual's response.
The court may award the parcel owner sued by the governmental entity, business
organization, or individual actual damages arising from the governmental
entity's, individual's, or business organization's violation of this section. A
court may treble the damages awarded to a prevailing parcel owner and shall
state the basis for the treble damages award in its judgment. The court shall
award the prevailing party reasonable attorney's fees and costs incurred in
connection with a claim that an action was filed in violation of this section.
(d) Homeowners'
associations may not expend association funds in prosecuting a SLAPP suit
against a parcel owner.
(5)(a) Any parcel owner
may construct an access ramp if a resident or occupant of the parcel has a
medical necessity or disability that requires a ramp for egress and ingress
under the following conditions:
1. The ramp must be as
unobtrusive as possible, be designed to blend in aesthetically as practicable,
and be reasonably sized to fit the intended use.
2. Plans for the ramp
must be submitted in advance to the homeowners' association. The association
may make reasonable requests to modify the design to achieve architectural
consistency with surrounding structures and surfaces.
(b) The parcel owner
must submit to the association an affidavit from a physician attesting to the
medical necessity or disability of the resident or occupant of the parcel
requiring the access ramp. Certification used for s. 320.0848 shall be
sufficient to meet the affidavit requirement.
(6) Any parcel owner may
display a sign of reasonable size provided by a contractor for security
services within 10 feet of any entrance to the home.
History.--s. 36, ch. 92-49; s. 51, ch. 2000-258; s. 1, ch.
2002-50; s. 19, ch. 2004-345; s. 16, ch. 2004-353.
Note.--Former s. 617.304.
720.305 Obligations of
members; remedies at law or in equity; levy of fines and suspension of use
rights; failure to fill sufficient number of vacancies on board of directors to
constitute a quorum; appointment of receiver upon petition of any member.--
(1) Each member and the
member's tenants, guests, and invitees, and each association, are governed by,
and must comply with, this chapter, the governing documents of the community,
and the rules of the association. Actions at law or in equity, or both, to
redress alleged failure or refusal to comply with these provisions may be
brought by the association or by any member against:
(a) The association;
(b) A member;
(c) Any director or
officer of an association who willfully and knowingly fails to comply with
these provisions; and
(d) Any tenants, guests,
or invitees occupying a parcel or using the common areas.
The prevailing party in any such litigation is entitled to recover reasonable
attorney's fees and costs. This section does not deprive any person of any
other available right or remedy.
(2) If the governing
documents so provide, an association may suspend, for a reasonable period of
time, the rights of a member or a member's tenants, guests, or invitees, or
both, to use common areas and facilities and may levy reasonable fines, not to
exceed $100 per violation, against any member or any tenant, guest, or invitee.
A fine may be levied on the basis of each day of a continuing violation, with a
single notice and opportunity for hearing, except that no such fine shall
exceed $1,000 in the aggregate unless otherwise provided in the governing
documents. A fine shall not become a lien against a parcel. In any action to
recover a fine, the prevailing party is entitled to collect its reasonable
attorney's fees and costs from the nonprevailing party as determined by the
court.
(a) A fine or suspension
may not be imposed without notice of at least 14 days to the person sought to
be fined or suspended and an opportunity for a hearing before a committee of at
least three members appointed by the board who are not officers, directors, or
employees of the association, or the spouse, parent, child, brother, or sister
of an officer, director, or employee. If the committee, by majority vote, does
not approve a proposed fine or suspension, it may not be imposed.
(b) The requirements of
this subsection do not apply to the imposition of suspensions or fines upon any
member because of the failure of the member to pay assessments or other charges
when due if such action is authorized by the governing documents.
(c) Suspension of
common-area-use rights shall not impair the right of an owner or tenant of a
parcel to have vehicular and pedestrian ingress to and egress from the parcel,
including, but not limited to, the right to park.
(3) If the governing
documents so provide, an association may suspend the voting rights of a member
for the nonpayment of regular annual assessments that are delinquent in excess
of 90 days.
(4) If an association
fails to fill vacancies on the board of directors sufficient to constitute a
quorum in accordance with the bylaws, any member may apply to the circuit court
that has jurisdiction over the community served by the association for the
appointment of a receiver to manage the affairs of the association. At least 30
days before applying to the circuit court, the member shall mail to the
association, by certified or registered mail, and post, in a conspicuous place
on the property of the community served by the association, a notice describing
the intended action, giving the association 30 days to fill the vacancies. If
during such time the association fails to fill a sufficient number of vacancies
so that a quorum can be assembled, the member may proceed with the petition. If
a receiver is appointed, the homeowners' association shall be responsible for
the salary of the receiver, court costs, attorney's fees, and all other
expenses of the receivership. The receiver has all the powers and duties of a
duly constituted board of directors and shall serve until the association fills
a sufficient number of vacancies on the board so that a quorum can be
assembled.
History.--s. 37, ch. 92-49; s. 55, ch. 95-274; s. 2, ch.
97-311; s. 51, ch. 2000-258; s. 20, ch. 2004-345; s. 17, ch. 2004-353.
Note.--Former s. 617.305.
720.3055 Contracts for
products and services; in writing; bids; exceptions.--
(1) All contracts as
further described in this section or any contract that is not to be fully
performed within 1 year after the making thereof for the purchase, lease, or
renting of materials or equipment to be used by the association in
accomplishing its purposes under this chapter or the governing documents, and
all contracts for the provision of services, shall be in writing. If a contract
for the purchase, lease, or renting of materials or equipment, or for the
provision of services, requires payment by the association that exceeds 10
percent of the total annual budget of the association, including reserves, the
association must obtain competitive bids for the materials, equipment, or
services. Nothing contained in this section shall be construed to require the
association to accept the lowest bid.
(2)(a)1. Notwithstanding
the foregoing, contracts with employees of the association, and contracts for
attorney, accountant, architect, community association manager, engineering,
and landscape architect services are not subject to the provisions of this
section.
2. A contract executed
before October 1, 2004, and any renewal thereof, is not subject to the
competitive bid requirements of this section. If a contract was awarded under
the competitive bid procedures of this section, any renewal of that contract is
not subject to such competitive bid requirements if the contract contains a
provision that allows the board to cancel the contract on 30 days' notice.
Materials, equipment, or services provided to an association under a local
government franchise agreement by a franchise holder are not subject to the
competitive bid requirements of this section. A contract with a manager, if
made by a competitive bid, may be made for up to 3 years. An association whose
declaration or bylaws provide for competitive bidding for services may operate
under the provisions of that declaration or bylaws in lieu of this section if
those provisions are not less stringent than the requirements of this section.
(b) Nothing contained in
this section is intended to limit the ability of an association to obtain
needed products and services in an emergency.
(c) This section does
not apply if the business entity with which the association desires to enter
into a contract is the only source of supply within the county serving the
association.
(d) Nothing contained in
this section shall excuse a party contracting to provide maintenance or
management services from compliance with s. 720.309.
History.--s. 21, ch. 2004-345; s. 18, ch. 2004-353.
720.306 Meetings of
members; voting and election procedures; amendments.--
(1) QUORUM;
AMENDMENTS.--
(a) Unless a lower
number is provided in the bylaws, the percentage of voting interests required
to constitute a quorum at a meeting of the members shall be 30 percent of the
total voting interests. Unless otherwise provided in this chapter or in the
articles of incorporation or bylaws, decisions that require a vote of the
members must be made by the concurrence of at least a majority of the voting
interests present, in person or by proxy, at a meeting at which a quorum has
been attained.
(b) Unless otherwise
provided in the governing documents or required by law, and other than those
matters set forth in paragraph (c), any governing document of an association
may be amended by the affirmative vote of two-thirds of the voting interests of
the association.
(c) Unless otherwise
provided in the governing documents as originally recorded or permitted by this
chapter or chapter 617, an amendment may not materially and adversely alter the
proportionate voting interest appurtenant to a parcel or increase the
proportion or percentage by which a parcel shares in the common expenses of the
association unless the record parcel owner and all record owners of liens on
the parcels join in the execution of the amendment. For purposes of this
section, a change in quorum requirements is not an alteration of voting
interests.
(2) ANNUAL MEETING.--The
association shall hold a meeting of its members annually for the transaction of
any and all proper business at a time, date, and place stated in, or fixed in
accordance with, the bylaws. The election of directors, if one is required to
be held, must be held at, or in conjunction with, the annual meeting or as
provided in the governing documents.
(3) SPECIAL
MEETINGS.--Special meetings must be held when called by the board of directors
or, unless a different percentage is stated in the governing documents, by at
least 10 percent of the total voting interests of the association. Business
conducted at a special meeting is limited to the purposes described in the
notice of the meeting.
(4) CONTENT OF
NOTICE.--Unless law or the governing documents require otherwise, notice of an
annual meeting need not include a description of the purpose or purposes for
which the meeting is called. Notice of a special meeting must include a
description of the purpose or purposes for which the meeting is called.
(5) NOTICE OF
MEETINGS.--The bylaws shall provide for giving notice to members of all member
meetings, and if they do not do so shall be deemed to provide the following:
The association shall give all parcel owners and members actual notice of all
membership meetings, which shall be mailed, delivered, or electronically
transmitted to the members not less than 14 days prior to the meeting. Evidence
of compliance with this 14-day notice shall be made by an affidavit executed by
the person providing the notice and filed upon execution among the official
records of the association. In addition to mailing, delivering, or
electronically transmitting the notice of any meeting, the association may, by
reasonable rule, adopt a procedure for conspicuously posting and repeatedly
broadcasting the notice and the agenda on a closed-circuit cable television
system serving the association. When broadcast notice is provided, the notice
and agenda must be broadcast in a manner and for a sufficient continuous length
of time so as to allow an average reader to observe the notice and read and
comprehend the entire content of the notice and the agenda.
(6) RIGHT TO
SPEAK.--Members and parcel owners have the right to attend all membership
meetings and to speak at any meeting with reference to all items opened for
discussion or included on the agenda. Notwithstanding any provision to the
contrary in the governing documents or any rules adopted by the board or by the
membership, a member and a parcel owner have the right to speak for at least 3
minutes on any item, provided that the member or parcel owner submits a written
request to speak prior to the meeting. The association may adopt written
reasonable rules governing the frequency, duration, and other manner of member
and parcel owner statements, which rules must be consistent with this
subsection.
(7) ADJOURNMENT.--Unless
the bylaws require otherwise, adjournment of an annual or special meeting to a
different date, time, or place must be announced at that meeting before an
adjournment is taken, or notice must be given of the new date, time, or place
pursuant to s. 720.303(2). Any business that might have been transacted on the
original date of the meeting may be transacted at the adjourned meeting. If a
new record date for the adjourned meeting is or must be fixed under 1s.
617.0707, notice of the adjourned meeting must be given to persons who are
entitled to vote and are members as of the new record date but were not members
as of the previous record date.
(8) PROXY VOTING.--The
members have the right, unless otherwise provided in this subsection or in the
governing documents, to vote in person or by proxy. To be valid, a proxy must
be dated, must state the date, time, and place of the meeting for which it was
given, and must be signed by the authorized person who executed the proxy. A
proxy is effective only for the specific meeting for which it was originally
given, as the meeting may lawfully be adjourned and reconvened from time to
time, and automatically expires 90 days after the date of the meeting for which
it was originally given. A proxy is revocable at any time at the pleasure of
the person who executes it. If the proxy form expressly so provides, any proxy
holder may appoint, in writing, a substitute to act in his or her place.
(9) ELECTIONS.--Elections
of directors must be conducted in accordance with the procedures set forth in
the governing documents of the association. All members of the association
shall be eligible to serve on the board of directors, and a member may nominate
himself or herself as a candidate for the board at a meeting where the election
is to be held. Except as otherwise provided in the governing documents, boards
of directors must be elected by a plurality of the votes cast by eligible
voters. Any election dispute between a member and an association must be
submitted to mandatory binding arbitration with the division. Such proceedings
shall be conducted in the manner provided by s. 718.1255 and the procedural
rules adopted by the division.
(10) RECORDING.--Any
parcel owner may tape record or videotape meetings of the board of directors
and meetings of the members. The board of directors of the association may
adopt reasonable rules governing the taping of meetings of the board and the
membership.
History.--s. 38, ch. 92-49; s. 56, ch. 95-274; s. 4, ch.
96-343; s. 1718, ch. 97-102; s. 47, ch. 2000-258; s. 4, ch. 2003-79; s. 22, ch.
2004-345; s. 19, ch. 2004-353.
1Note.--Section 617.0707 does not exist.
Note.--Former s. 617.306.
720.307 Transition of
association control in a community.--With respect to homeowners'
associations:
(1) Members other than
the developer are entitled to elect at least a majority of the members of the
board of directors of the homeowners' association when the earlier of the
following events occurs:
(a) Three months after
90 percent of the parcels in all phases of the community that will ultimately
be operated by the homeowners' association have been conveyed to members; or
(b) Such other
percentage of the parcels has been conveyed to members, or such other date or
event has occurred, as is set forth in the governing documents in order to comply
with the requirements of any governmentally chartered entity with regard to the
mortgage financing of parcels.
For purposes of this section, the term "members other than the
developer" shall not include builders, contractors, or others who purchase
a parcel for the purpose of constructing improvements thereon for resale.
(2) The developer is
entitled to elect at least one member of the board of directors of the
homeowners' association as long as the developer holds for sale in the ordinary
course of business at least 5 percent of the parcels in all phases of the
community. After the developer relinquishes control of the homeowners'
association, the developer may exercise the right to vote any developer-owned
voting interests in the same manner as any other member, except for purposes of
reacquiring control of the homeowners' association or selecting the majority of
the members of the board of directors.
(3) At the time the
members are entitled to elect at least a majority of the board of directors of
the homeowners' association, the developer shall, at the developer's expense,
within no more than 90 days deliver the following documents to the board:
(a) All deeds to common
property owned by the association.
(b) The original of the
association's declarations of covenants and restrictions.
(c) A certified copy of
the articles of incorporation of the association.
(d) A copy of the
bylaws.
(e) The minute books,
including all minutes.
(f) The books and
records of the association.
(g) Policies, rules, and
regulations, if any, which have been adopted.
(h) Resignations of
directors who are required to resign because the developer is required to
relinquish control of the association.
(i) The financial
records of the association from the date of incorporation through the date of
turnover.
(j) All association
funds and control thereof.
(k) All tangible
property of the association.
(l) A copy of all
contracts which may be in force with the association as one of the parties.
(m) A list of the names
and addresses and telephone numbers of all contractors, subcontractors, or
others in the current employ of the association.
(n) Any and all
insurance policies in effect.
(o) Any permits issued
to the association by governmental entities.
(p) Any and all
warranties in effect.
(q) A roster of current
homeowners and their addresses and telephone numbers and section and lot
numbers.
(r) Employment and
service contracts in effect.
(s) All other contracts
in effect to which the association is a party.
(4) This section does
not apply to a homeowners' association in existence on the effective date of
this act, or to a homeowners' association, no matter when created, if such
association is created in a community that is included in an effective
development-of-regional-impact development order as of the effective date of
this act, together with any approved modifications thereof.
History.--s. 57, ch. 95-274; s. 2, ch. 98-261; s. 48, ch.
2000-258.
Note.--Former s. 617.307.
720.3075 Prohibited
clauses in association documents.--
(1) It is declared that
the public policy of this state prohibits the inclusion or enforcement of
certain types of clauses in homeowners' association documents, including
declaration of covenants, articles of incorporation, bylaws, or any other
document of the association which binds members of the association, which
either have the effect of or provide that:
(a) A developer has the
unilateral ability and right to make changes to the homeowners' association
documents after the transition of homeowners' association control in a
community from the developer to the nondeveloper members, as set forth in s.
720.307, has occurred.
(b) A homeowners'
association is prohibited or restricted from filing a lawsuit against the
developer, or the homeowners' association is otherwise effectively prohibited
or restricted from bringing a lawsuit against the developer.
(c) After the transition
of homeowners' association control in a community from the developer to the
nondeveloper members, as set forth in s. 720.307, has occurred, a developer is
entitled to cast votes in an amount that exceeds one vote per residential lot.
Such clauses are declared null and void as against the public policy of this
state.
(2) The public policy
described in subsection (1) prohibits the inclusion or enforcement of such
clauses created on or after the effective date of s. 3, chapter 98-261, Laws of
Florida.
(3) Homeowners'
association documents, including declarations of covenants, articles of incorporation,
or bylaws, may not preclude the display of one portable, removable United
States flag by property owners. However, the flag must be displayed in a
respectful manner, consistent with Title 36 U.S.C. chapter 10.
(4) Homeowners'
association documents, including declarations of covenants, articles of
incorporation, or bylaws, entered after October 1, 2001, may not prohibit any
property owner from implementing Xeriscape or Florida-friendly landscape, as
defined in s. 373.185(1), on his or her land.
History.--s. 3, ch. 98-261; s. 49, ch. 2000-258; s. 47, ch.
2000-302; s. 8, ch. 2001-252; s. 2, ch. 2002-50.
Note.--Former s. 617.3075.
720.308 Assessments and
charges.--For any community created after October 1, 1995, the governing
documents must describe the manner in which expenses are shared and specify the
member's proportional share thereof. Assessments levied pursuant to the annual
budget or special assessment must be in the member's proportional share of
expenses as described in the governing document, which share may be different
among classes of parcels based upon the state of development thereof, levels of
services received by the applicable members, or other relevant factors. While
the developer is in control of the homeowners' association, it may be excused
from payment of its share of the operating expenses and assessments related to
its parcels for any period of time for which the developer has, in the
declaration, obligated itself to pay any operating expenses incurred that
exceed the assessments receivable from other members and other income of the
association. This section does not apply to an association, no matter when
created, if the association is created in a community that is included in an
effective development-of-regional-impact development order as of the effective
date of this act, together with any approved modifications thereto.
History.--s. 58, ch. 95-274; s. 51, ch. 2000-258.
Note.--Former s. 617.308.
720.3086 Financial report.--In
a residential subdivision in which the owners of lots or parcels must pay
mandatory maintenance or amenity fees to the subdivision developer or to the
owners of the common areas, recreational facilities, and other properties
serving the lots or parcels, the developer or owner of such areas, facilities,
or properties shall make public, within 60 days following the end of each
fiscal year, a complete financial report of the actual, total receipts of
mandatory maintenance or amenity fees received by it, and an itemized listing
of the expenditures made by it from such fees, for that year. Such report shall
be made public by mailing it to each lot or parcel owner in the subdivision, by
publishing it in a publication regularly distributed within the subdivision, or
by posting it in prominent locations in the subdivision. This section does not
apply to amounts paid to homeowner associations pursuant to chapter 617,
chapter 718, chapter 719, chapter 721, or chapter 723, or to amounts paid to
local governmental entities, including special districts.
History.--s. 64, ch. 95-274; s. 26, ch. 2004-345; s. 22, ch.
2004-353.
Note.--Former s. 689.265.
720.309 Agreements entered
into by the association.--Any grant or reservation made by any document,
and any contract with a term in excess of 10 years made by an association
before control of the association is turned over to the members other than the
developer, which provide for operation, maintenance, or management of the
association or common areas must be fair and reasonable.
History.--s. 59, ch. 95-274; s. 51, ch. 2000-258.
Note.--Former s. 617.309.
720.31 Recreational
leaseholds; right to acquire; escalation clauses.--
(1) Any lease of
recreational or other commonly used facilities serving a community, which lease
is entered into by the association or its members before control of the
homeowners' association is turned over to the members other than the developer,
must provide as follows:
(a) That the facilities
may not be offered for sale unless the homeowners' association has the option
to purchase the facilities, provided the homeowners' association meets the
price and terms and conditions of the facility owner by executing a contract
with the facility owner within 90 days, unless agreed to otherwise, from the
date of mailing of the notice by the facility owner to the homeowners'
association. If the facility owner offers the facilities for sale, he or she
shall notify the homeowners' association in writing stating the price and the
terms and conditions of sale.
(b) If a contract
between the facility owner and the association is not executed within such
90-day period, unless extended by mutual agreement, then, unless the facility
owner thereafter elects to offer the facilities at a price lower than the price
specified in his or her notice to the homeowners' association, he or she has no
further obligations under this subsection, and his or her only obligation shall
be as set forth in subsection (2).
(c) If the facility
owner thereafter elects to offer the facilities at a price lower than the price
specified in his or her notice to the homeowners' association, the homeowners'
association will have an additional 10 days to meet the price and terms and
condition of the facility owner by executing a contract.
(2) If a facility owner
receives a bona fide offer to purchase the facilities that he or she intends to
consider or make a counteroffer to, his or her only obligations shall be to
notify the homeowners' association that he or she has received an offer, to
disclose the price and material terms and conditions upon which he or she would
consider selling the facilities, and to consider any offer made by the
homeowners' association. The facility owner shall be under no obligation to sell
to the homeowners' association or to interrupt or delay other negotiations, and
he or she shall be free at any time to execute a contract for the sale of the
facilities to a party or parties other than the homeowners' association.
(3)(a) As used in subsections
(1) and (2), the term "notify" means the placing of a notice in the
United States mail addressed to the president of the homeowners' association.
Each such notice shall be deemed to have been given upon the deposit of the
notice in the United States mail.
(b) As used in
subsection (1), the term "offer" means any solicitation by the
facility owner directed to the general public.
(4) This section does
not apply to:
(a) Any sale or transfer
to a person who would be included within the table of descent and distribution
if the facility owner were to die intestate.
(b) Any transfer by
gift, devise, or operation of law.
(c) Any transfer by a
corporation to an affiliate. As used herein, the term "affiliate"
means any shareholder of the transferring corporation; any corporation or
entity owned or controlled, directly or indirectly, by the transferring
corporation; or any other corporation or entity owned or controlled, directly
or indirectly, by any shareholder of the transferring corporation.
(d) Any transfer to a
governmental or quasi-governmental entity.
(e) Any conveyance of an
interest in the facilities incidental to the financing of such facilities.
(f) Any conveyance
resulting from the foreclosure of a mortgage, deed of trust, or other instrument
encumbering the facilities or any deed given in lieu of such foreclosure.
(g) Any sale or transfer
between or among joint tenants in common owning the facilities.
(h) The purchase of the
facilities by a governmental entity under its powers of eminent domain.
(5)(a) The Legislature
declares that the public policy of this state prohibits the inclusion or
enforcement of escalation clauses in land leases or other leases for
recreational facilities, land, or other commonly used facilities that serve
residential communities, and such clauses are hereby declared void. For
purposes of this section, an escalation clause is any clause in a lease which
provides that the rental rate under the lease or agreement is to increase at
the same percentage rate as any nationally recognized and conveniently
available commodity or consumer price index.
(b) This public policy
prohibits the inclusion of such escalation clauses in leases entered into after
the effective date of this amendment.
(c) This section is
inapplicable:
1. If the lessor is the
Federal Government, this state, any political subdivision of this state, or any
agency of a political subdivision of this state; or
2. To a homeowners'
association that is in existence on the effective date of this act, or to an
association, no matter when created, if the association is created in a
community that is included in an effective development-of-regional-impact
development order as of the effective date of this act, together with any
approved modifications thereto.
History.--s. 60, ch. 95-274; s. 107, ch. 97-102; s. 51, ch.
2000-258.
Note.--Former s. 617.31.
720.311 Dispute
resolution.--
(1) The Legislature
finds that alternative dispute resolution has made progress in reducing court
dockets and trials and in offering a more efficient, cost-effective option to
litigation. The filing of any petition for mediation or arbitration provided
for in this section shall toll the applicable statute of limitations. Any
recall dispute filed with the department pursuant to s. 720.303(10) shall be
conducted by the department in accordance with the provisions of ss.
718.112(2)(j) and 718.1255 and the rules adopted by the division. In addition,
the department shall conduct mandatory binding arbitration of election disputes
between a member and an association pursuant to s. 718.1255 and rules adopted
by the division. Neither election disputes nor recall disputes are eligible for
mediation; these disputes shall be arbitrated by the department. At the
conclusion of the proceeding, the department shall charge the parties a fee in
an amount adequate to cover all costs and expenses incurred by the department
in conducting the proceeding. Initially, the petitioner shall remit a filing
fee of at least $200 to the department. The fees paid to the department shall
become a recoverable cost in the arbitration proceeding, and the prevailing
party in an arbitration proceeding shall recover its reasonable costs and
attorney's fees in an amount found reasonable by the arbitrator. The department
shall adopt rules to effectuate the purposes of this section.
(2)(a) Disputes between
an association and a parcel owner regarding use of or changes to the parcel or
the common areas and other covenant enforcement disputes, disputes regarding amendments
to the association documents, disputes regarding meetings of the board and
committees appointed by the board, membership meetings not including election
meetings, and access to the official records of the association shall be filed
with the department for mandatory mediation before the dispute is filed in
court. Mediation proceedings must be conducted in accordance with the
applicable Florida Rules of Civil Procedure, and these proceedings are
privileged and confidential to the same extent as court-ordered mediation. An
arbitrator or judge may not consider any information or evidence arising from
the mediation proceeding except in a proceeding to impose sanctions for failure
to attend a mediation session. Persons who are not parties to the dispute may
not attend the mediation conference without the consent of all parties, except
for counsel for the parties and a corporate representative designated by the
association. When mediation is attended by a quorum of the board, such
mediation is not a board meeting for purposes of notice and participation set
forth in s. 720.303. The department shall conduct the proceedings through the
use of department mediators or refer the disputes to private mediators who have
been duly certified by the department as provided in paragraph (c). The parties
shall share the costs of mediation equally, including the fee charged by the
mediator, if any, unless the parties agree otherwise. If a department mediator
is used, the department may charge such fee as is necessary to pay expenses of
the mediation, including, but not limited to, the salary and benefits of the
mediator and any travel expenses incurred. The petitioner shall initially file
with the department upon filing the disputes, a filing fee of $200, which shall
be used to defray the costs of the mediation. At the conclusion of the
mediation, the department shall charge to the parties, to be shared equally
unless otherwise agreed by the parties, such further fees as are necessary to
fully reimburse the department for all expenses incurred in the mediation.
(b) If mediation as
described in paragraph (a) is not successful in resolving all issues between
the parties, the parties may file the unresolved dispute in a court of
competent jurisdiction or elect to enter into binding or nonbinding arbitration
pursuant to the procedures set forth in s. 718.1255 and rules adopted by the
division, with the arbitration proceeding to be conducted by a department
arbitrator or by a private arbitrator certified by the department. If all
parties do not agree to arbitration proceedings following an unsuccessful
mediation, any party may file the dispute in court. A final order resulting
from nonbinding arbitration is final and enforceable in the courts if a
complaint for trial de novo is not filed in a court of competent jurisdiction
within 30 days after entry of the order.
(c) The department shall
develop a certification and training program for private mediators and private
arbitrators which shall emphasize experience and expertise in the area of the
operation of community associations. A mediator or arbitrator shall be
certified by the department only if he or she has attended at least 20 hours of
training in mediation or arbitration, as appropriate, and only if the applicant
has mediated or arbitrated at least 10 disputes involving community
associations within 5 years prior to the date of the application, or has
mediated or arbitrated 10 disputes in any area within 5 years prior to the date
of application and has completed 20 hours of training in community association
disputes. In order to be certified by the department, any mediator must also be
certified by the Florida Supreme Court. The department may conduct the training
and certification program within the department or may contract with an outside
vendor to perform the training or certification. The expenses of operating the
training and certification and training program shall be paid by the moneys and
filing fees generated by the arbitration of recall and election disputes and by
the mediation of those disputes referred to in this subsection and by the
training fees.
(d) The mediation
procedures provided by this subsection may be used by a Florida corporation
responsible for the operation of a community in which the voting members are
parcel owners or their representatives, in which membership in the corporation
is not a mandatory condition of parcel ownership, or which is not authorized to
impose an assessment that may become a lien on the parcel.
(3) The department shall
develop an education program to assist homeowners, associations, board members,
and managers in understanding and increasing awareness of the operation of
homeowners' associations pursuant to this chapter and in understanding the use
of alternative dispute resolution techniques in resolving disputes between
parcel owners and associations or between owners. Such education program may
include the development of pamphlets and other written instructional guides,
the holding of classes and meetings by department employees or outside vendors,
as the department determines, and the creation and maintenance of a website
containing instructional materials. The expenses of operating the education
program shall be initially paid by the moneys and filing fees generated by the
arbitration of recall and election disputes and by the mediation of those
disputes referred to in this subsection.
History.--s. 61, ch. 95-274; s. 50, ch. 2000-258; s. 23, ch.
2004-345; s. 20, ch. 2004-353.
Note.--Former s. 617.311.
720.312 Declaration of
covenants; survival after tax deed or foreclosure.--All provisions of a
declaration of covenants relating to a parcel that has been sold for taxes or
special assessments survive and are enforceable after the issuance of a tax
deed or master's deed, or upon the foreclosure of an assessment, a certificate
or lien, a tax deed, tax certificate, or tax lien, to the same extent that they
would be enforceable against a voluntary grantee of title to the parcel
immediately before the delivery of the tax deed or master's deed or immediately
before the foreclosure.
History.--s. 62, ch. 95-274; s. 51, ch. 2000-258.
Note.--Former s. 617.312.
PART
II
DISCLOSURE
PRIOR TO SALE OF
RESIDENTIAL PARCELS
720.401 Prospective purchasers
subject to association membership requirement; disclosure required; covenants;
assessments; contract cancellation.
720.402 Publication of false
and misleading information.
720.401 Prospective
purchasers subject to association membership requirement; disclosure required;
covenants; assessments; contract cancellation.--
(1)(a) A prospective parcel owner in a community must be
presented a disclosure summary before executing the contract for sale. The
disclosure summary must be in a form substantially similar to the following
form:
DISCLOSURE SUMMARY
FOR
(NAME OF COMMUNITY)
1. AS A PURCHASER OF
PROPERTY IN THIS COMMUNITY, YOU WILL BE OBLIGATED TO BE A MEMBER OF A
HOMEOWNERS' ASSOCIATION.
2. THERE HAVE BEEN OR
WILL BE RECORDED RESTRICTIVE COVENANTS GOVERNING THE USE AND OCCUPANCY OF
PROPERTIES IN THIS COMMUNITY.
3. YOU WILL BE OBLIGATED
TO PAY ASSESSMENTS TO THE ASSOCIATION. ASSESSMENTS MAY BE SUBJECT TO PERIODIC
CHANGE. IF APPLICABLE, THE CURRENT AMOUNT IS $_____ PER _____. YOU WILL ALSO BE
OBLIGATED TO PAY ANY SPECIAL ASSESSMENTS IMPOSED BY THE ASSOCIATION. SUCH
SPECIAL ASSESSMENTS MAY BE SUBJECT TO CHANGE. IF APPLICABLE, THE CURRENT AMOUNT
IS $_____ PER _____.
4. YOU MAY BE OBLIGATED
TO PAY SPECIAL ASSESSMENTS TO THE RESPECTIVE MUNICIPALITY, COUNTY, OR SPECIAL
DISTRICT. ALL ASSESSMENTS ARE SUBJECT TO PERIODIC CHANGE.
5. YOUR FAILURE TO PAY
SPECIAL ASSESSMENTS OR ASSESSMENTS LEVIED BY A MANDATORY HOMEOWNERS'
ASSOCIATION COULD RESULT IN A LIEN ON YOUR PROPERTY.
6. THERE MAY BE AN OBLIGATION
TO PAY RENT OR LAND USE FEES FOR RECREATIONAL OR OTHER COMMONLY USED FACILITIES
AS AN OBLIGATION OF MEMBERSHIP IN THE HOMEOWNERS' ASSOCIATION. IF APPLICABLE,
THE CURRENT AMOUNT IS $_____ PER _____.
7. THE DEVELOPER MAY
HAVE THE RIGHT TO AMEND THE RESTRICTIVE COVENANTS WITHOUT THE APPROVAL OF THE
ASSOCIATION MEMBERSHIP OR THE APPROVAL OF THE PARCEL OWNERS.
8. THE STATEMENTS
CONTAINED IN THIS DISCLOSURE FORM ARE ONLY SUMMARY IN NATURE, AND, AS A
PROSPECTIVE PURCHASER, YOU SHOULD REFER TO THE COVENANTS AND THE ASSOCIATION
GOVERNING DOCUMENTS BEFORE PURCHASING PROPERTY.
9. THESE DOCUMENTS ARE
EITHER MATTERS OF PUBLIC RECORD AND CAN BE OBTAINED FROM THE RECORD OFFICE IN
THE COUNTY WHERE THE PROPERTY IS LOCATED, OR ARE NOT RECORDED AND CAN BE
OBTAINED FROM THE DEVELOPER.
DATE:
PURCHASER:
PURCHASER:
The disclosure must be supplied by the developer, or by the parcel owner if the
sale is by an owner that is not the developer. Any contract or agreement for
sale shall refer to and incorporate the disclosure summary and shall include,
in prominent language, a statement that the potential buyer should not execute
the contract or agreement until they have received and read the disclosure
summary required by this section.
(b) Each contract
entered into for the sale of property governed by covenants subject to
disclosure required by this section must contain in conspicuous type a clause
that states:
IF THE DISCLOSURE SUMMARY REQUIRED BY SECTION 720.401,
FLORIDA STATUTES, HAS NOT BEEN PROVIDED TO THE PROSPECTIVE PURCHASER BEFORE
EXECUTING THIS CONTRACT FOR SALE, THIS CONTRACT IS VOIDABLE BY BUYER BY
DELIVERING TO SELLER OR SELLER'S AGENT OR REPRESENTATIVE WRITTEN NOTICE OF THE
BUYER'S INTENTION TO CANCEL WITHIN 3 DAYS AFTER RECEIPT OF THE DISCLOSURE SUMMARY
OR PRIOR TO CLOSING, WHICHEVER OCCURS FIRST. ANY PURPORTED WAIVER OF THIS
VOIDABILITY RIGHT HAS NO EFFECT. BUYER'S RIGHT TO VOID THIS CONTRACT SHALL
TERMINATE AT CLOSING.
(c) If the disclosure
summary is not provided to a prospective purchaser before the purchaser
executes a contract for the sale of property governed by covenants that are
subject to disclosure pursuant to this section, the purchaser may void the
contract by delivering to the seller or the seller's agent or representative
written notice canceling the contract within 3 days after receipt of the
disclosure summary or prior to closing, whichever occurs first. This right may
not be waived by the purchaser but terminates at closing.
(2) This section does
not apply to any association regulated under chapter 718, chapter 719, chapter
721, or chapter 723 or to a subdivider registered under chapter 498; and also
does not apply if disclosure regarding the association is otherwise made in
connection with the requirements of chapter 718, chapter 719, chapter 721, or
chapter 723.
History.--s. 40, ch. 92-49; s. 63, ch. 95-274; s. 4, ch.
98-261; s. 1, ch. 2003-48; s. 25, ch. 2004-345; s. 21, ch. 2004-353.
Note.--Former s. 689.26.
720.402 Publication of
false and misleading information.--
(1) Any person who, in
reasonable reliance upon any material statement or information that is false or
misleading and published by or under authority from the developer in
advertising and promotional materials, including, but not limited to, a
contract of purchase, the declaration of covenants, exhibits to a declaration
of covenants, brochures, and newspaper advertising, pays anything of value
toward the purchase of a parcel in a community located in this state has a
cause of action to rescind the contract or collect damages from the developer
for his or her loss before the closing of the transaction. After the closing of
the transaction, the purchaser has a cause of action against the developer for
damages under this section from the time of closing until 1 year after the date
upon which the last of the events described in paragraphs (a) through (d)
occurs:
(a) The closing of the
transaction;
(b) The issuance by the
applicable governmental authority of a certificate of occupancy or other
evidence of sufficient completion of construction of the purchaser's residence
to allow lawful occupancy of the residence by the purchaser. In counties or
municipalities in which certificates of occupancy or other evidences of
completion sufficient to allow lawful occupancy are not customarily issued, for
the purpose of this section, evidence of lawful occupancy shall be deemed to be
given or issued upon the date that such lawful occupancy of the residence may
be allowed under prevailing applicable laws, ordinances, or statutes;
(c) The completion by
the developer of the common areas and such recreational facilities, whether or
not the same are common areas, which the developer is obligated to complete or
provide under the terms of the written contract, governing documents, or
written agreement for purchase or lease of the parcel; or
(d) In the event there
is not a written contract or agreement for sale or lease of the parcel, then
the completion by the developer of the common areas and such recreational
facilities, whether or not they are common areas, which the developer would be
obligated to complete under any rule of law applicable to the developer's
obligation.
Under no circumstances may a cause of action created or recognized under this
section survive for a period of more than 5 years after the closing of the
transaction.
(2) In any action for
relief under this section, the prevailing party may recover reasonable
attorney's fees. A developer may not expend association funds in the defense of
any suit under this section.
History.--s. 28, ch. 2004-345; s. 24, ch. 2004-353; s. 136,
ch. 2005-2.
PART
III
COVENANT
REVITALIZATION
720.403 Preservation of
residential communities; revival of declaration of covenants.
720.404 Eligible residential
communities; requirements for revival of declaration.
720.405 Organizing committee;
parcel owner approval.
720.406 Department of
Community Affairs; submission; review and determination.
720.407 Recording; notice of
recording; applicability and effective date.
720.403 Preservation of
residential communities; revival of declaration of covenants.--
(1) Consistent with
required and optional elements of local comprehensive plans and other
applicable provisions of the Local Government Comprehensive Planning and Land
Development Regulation Act, homeowners are encouraged to preserve existing
residential communities, promote available and affordable housing, protect
structural and aesthetic elements of their residential community, and, as
applicable, maintain roads and streets, easements, water and sewer systems,
utilities, drainage improvements, conservation and open areas, recreational
amenities, and other infrastructure and common areas that serve and support the
residential community by the revival of a previous declaration of covenants and
other governing documents that may have ceased to govern some or all parcels in
the community.
(2) In order to preserve
a residential community and the associated infrastructure and common areas for
the purposes described in this section, the parcel owners in a community that
was previously subject to a declaration of covenants that has ceased to govern
one or more parcels in the community may revive the declaration and the
homeowners' association for the community upon approval by the parcel owners to
be governed thereby as provided in this act, and upon approval of the
declaration and the other governing documents for the association by the
Department of Community Affairs in a manner consistent with this act.
History.--s. 11, ch. 2004-345; s. 7, ch. 2004-353.
720.404 Eligible
residential communities; requirements for revival of declaration.--Parcel
owners in a community are eligible to seek approval from the Department of
Community Affairs to revive a declaration of covenants under this act if all of
the following requirements are met:
(1) All parcels to be
governed by the revived declaration must have been once governed by a previous
declaration that has ceased to govern some or all of the parcels in the
community;
(2) The revived
declaration must be approved in the manner provided in s. 720.405(6); and
(3) The revived
declaration may not contain covenants that are more restrictive on the parcel
owners than the covenants contained in the previous declaration, except that
the declaration may:
(a) Have an effective
term of longer duration than the term of the previous declaration;
(b) Omit restrictions
contained in the previous declaration;
(c) Govern fewer than
all of the parcels governed by the previous declaration;
(d) Provide for
amendments to the declaration and other governing documents; and
(e) Contain provisions
required by this chapter for new declarations that were not contained in the
previous declaration.
History.--s. 12, ch. 2004-345; s. 8, ch. 2004-353.
720.405 Organizing
committee; parcel owner approval.--
(1) The proposal to
revive a declaration of covenants and a homeowners' association for a community
under the terms of this act shall be initiated by an organizing committee
consisting of not less than three parcel owners located in the community that
is proposed to be governed by the revived declaration. The name, address, and
telephone number of each member of the organizing committee must be included in
any notice or other document provided by the committee to parcel owners to be
affected by the proposed revived declaration.
(2) The organizing
committee shall prepare or cause to be prepared the complete text of the
proposed revised declaration of covenants to be submitted to the parcel owners
for approval. The proposed revived documents must identify each parcel that is
to be subject to the governing documents by its legal description, and by the
name of the parcel owner or the person in whose name the parcel is assessed on
the last completed tax assessment roll of the county at the time when the
proposed revived declaration is submitted for approval by the parcel owners.
(3) The organizing
committee shall prepare the full text of the proposed articles of incorporation
and bylaws of the revived homeowners' association to be submitted to the parcel
owners for approval, unless the association is then an existing corporation, in
which case the organizing committee shall prepare the existing articles of
incorporation and bylaws to be submitted to the parcel owners.
(4) The proposed revived
declaration and other governing documents for the community shall:
(a) Provide that the
voting interest of each parcel owner shall be the same as the voting interest
of the parcel owner under the previous governing documents;
(b) Provide that the
proportional-assessment obligations of each parcel owner shall be the same as
proportional-assessment obligations of the parcel owner under the previous
governing documents;
(c) Contain the same
respective amendment provisions as the previous governing documents or, if
there were no amendment provisions in the previous governing document,
amendment provisions that require approval of not less than two-thirds of the
affected parcel owners;
(d) Contain no covenants
that are more restrictive on the affected parcel owners than the covenants
contained in the previous governing documents, except as permitted under s.
720.404(3); and
(e) Comply with the
other requirements for a declaration of covenants and other governing documents
as specified in this chapter.
(5) A copy of the
complete text of the proposed revised declaration of covenants, the proposed
new or existing articles of incorporation and bylaws of the homeowners'
association, and a graphic depiction of the property to be governed by the
revived declaration shall be presented to all of the affected parcel owners by
mail or hand delivery not less than 14 days before the time that the consent of
the affected parcel owners to the proposed governing documents is sought by the
organizing committee.
(6) A majority of the
affected parcel owners must agree in writing to the revived declaration of
covenants and governing documents of the homeowners' association or approve the
revived declaration and governing documents by a vote at a meeting of the
affected parcel owners noticed and conducted in the manner prescribed by s.
720.306. Proof of notice of the meeting to all affected owners of the meeting
and the minutes of the meeting recording the votes of the property owners shall
be certified by a court reporter or an attorney licensed to practice in the
state.
History.--s. 13, ch. 2004-345; s. 9, ch. 2004-353; s. 137, ch.
2005-2.
720.406 Department of
Community Affairs; submission; review and determination.--
(1) No later than 60
days after the date the proposed revived declaration and other governing
documents are approved by the affected parcel owners, the organizing committee
or its designee must submit the proposed revived governing documents and
supporting materials to the Department of Community Affairs to review and
determine whether to approve or disapprove of the proposal to preserve the
residential community. The submission to the department must include:
(a) The full text of the
proposed revived declaration of covenants and articles of incorporation and
bylaws of the homeowners' association;
(b) A verified copy of
the previous declaration of covenants and other previous governing documents
for the community, including any amendments thereto;
(c) The legal
description of each parcel to be subject to the revived declaration and other
governing documents and a plat or other graphic depiction of the affected
properties in the community;
(d) A verified copy of
the written consents of the requisite number of the affected parcel owners
approving the revived declaration and other governing documents or, if approval
was obtained by a vote at a meeting of affected parcel owners, verified copies
of the notice of the meeting, attendance, and voting results;
(e) An affidavit by a
current or former officer of the association or by a member of the organizing
committee verifying that the requirements for the revived declaration set forth
in s. 720.404 have been satisfied; and
(f) Such other
documentation that the organizing committee believes is supportive of the
policy of preserving the residential community and operating, managing, and
maintaining the infrastructure, aesthetic character, and common areas serving
the residential community.
(2) No later than 60
days after receiving the submission, the department must determine whether the
proposed revived declaration of covenants and other governing documents comply
with the requirements of this act.
(a) If the department
determines that the proposed revived declaration and other governing documents
comply with the act and have been approved by the parcel owners as required by
this act, the department shall notify the organizing committee in writing of
its approval.
(b) If the department
determines that the proposed revived declaration and other governing documents
do not comply with this act or have not been approved as required by this act,
the department shall notify the organizing committee in writing that it does
not approve the governing documents and shall state the reasons for the
disapproval.
History.--s. 14, ch. 2004-345; s. 10, ch. 2004-353.
720.407 Recording; notice
of recording; applicability and effective date.--
(1) No later than 30
days after receiving approval from the department, the organizing committee
shall file the articles of incorporation of the association with the Division
of Corporations of the Department of State if the articles have not been
previously filed with the division.
(2) No later than 30
days after receiving approval from the division, the president and secretary of
the association shall execute the revived declaration and other governing
documents approved by the department in the name of the association and have
the documents recorded with the clerk of the circuit court in the county where
the affected parcels are located.
(3) The recorded
documents shall include the full text of the approved declaration of covenants,
the articles of incorporation and bylaws of the homeowners' association, the
letter of approval by the department, and the legal description of each
affected parcel of property. For purposes of chapter 712, the association is
deemed to be and shall be indexed as the grantee in a title transaction and the
parcel owners named in the revived declaration are deemed to be and shall be
indexed as the grantors in the title transaction.
(4) Immediately after
recording the documents, a complete copy of all of the approved recorded
documents must be mailed or hand delivered to the owner of each affected parcel.
The revived declaration and other governing documents shall be effective upon
recordation in the public records with respect to each affected parcel subject
thereto, regardless of whether the particular parcel owner approved the revived
declaration. Upon recordation, the revived declaration shall replace and
supersede the previous declaration with respect to all affected parcels then
governed by the previous declaration and shall have the same record priority as
the superseded previous declaration. With respect to any affected parcels that
had ceased to be governed by the previous declaration as of the recording date,
the revived declaration may not have retroactive effect with respect to the
parcel and shall take priority with respect to the parcel as of the recording
date.
(5) With respect to any
parcel that has ceased to be governed by a previous declaration of covenants as
of the effective date of this act, the parcel owner may commence an action
within 1 year after the effective date of this act for a judicial determination
that the previous declaration did not govern that parcel as of the effective
date of this act and that any revival of such declaration as to that parcel
would unconstitutionally deprive the parcel owner of rights or property. A revived
declaration that is implemented pursuant to this act shall not apply to or
affect the rights of the respective parcel owner recognized by any court order
or judgment in any such action commenced within 1 year after the effective date
of this act, and any such rights so recognized may not be subsequently altered
by a revived declaration implemented under this act without the consent of the
affected property owner.
History.--s. 15, ch. 2004-345; s. 11, ch. 2004-353.