HomeMy WebLinkAboutSubmittal-Commissioner Suarez-Florida Senate Bill (SB1882)Florida Senate - 2017 SB 1682
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m5.-31\-
By Senator Garcia
Submitted into the pu
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A.�
City Clerk
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A bill to be entitled
An act relating to condominiums; amending s. 718.111,
F.S.; prohibiting an attorney from representing a
board under certain conditions; prohibiting certain
actions by a board member or management company;
providing recordkeeping requirements; providing that
the official records of an association are open to
inspection by unit renters; providing criminal
penalties; providing a definition; providing
requirements relating to the posting of specified
documents on an association's website; providing a
remedy for an association's failure to provide a unit
owner with a copy of the most recent financial report;
requiring the Division of Florida Condominiums,
Timeshares, and Mobile Homes to maintain and provide
copies of financial reports; amending s. 718.112,
F.S.; providing board member term limits; providing an
exception; deleting certification requirements
relating to the recall of board members; revising the
amount of time in which a recalled board member must
turn over records and property of the association to
the board; prohibiting an association from employing
or contracting with a service provider that is owned
or operated by certain persons; amending s. 718.1255,
F.S.; authorizing, rather than requiring, the division
to employ full-time attorneys to conduct certain
arbitration hearings; providing requirements for the
certification of arbitrators; prohibiting the
Department of Business and Professional Regulation
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from entering into a legal services contract for
certain arbitration hearings; requiring the division
to assign or enter into contracts with arbitrators;
requiring arbitrators to conduct hearings within a
specified period; providing an exception; providing
arbitration proceeding requirements; creating s.
718.129, F.S.; providing that certain activities
constitute fraudulent voting activities related to
association elections; providing criminal penalties;
amending s. 718.3025, F.S.; prohibiting specified
parties from certain activities; creating s. 718.3027,
F.S.; providing requirements relating to board
director and officer conflicts of interest; providing
that certain contracts are null and void if they do
not meet specified notice requirements; amending s.
718.303, F.S.; providing requirements relating to the
suspension of voting rights of unit owners and
members; prohibiting a receiver from exercising the
voting rights of a unit owner whose unit is placed in
receivership; amending s. 718.5012, F.S.; providing
the ombudsman with an additional power; creating s.
718.71, F.S.; providing financial reporting
requirements of an association; providing an effective
date.
Be It Enacted by the Legislature of the State of Florida:
Section 1. Subsections (3) and (9), paragraphs (a) and (c)
of subsection (12), and subsection (13) of section 718.111,
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Florida Statutes, are amended, and paragraph (g) is added to
subsection (12) of that section, to read:
718.111 The association.—
(3) POWER TO MANAGE CONDOMINIUM PROPERTY AND TO CONTRACT,
SUE, AND BE SUED; CONFLICT OF INTEREST. —
(a) The association may contract, sue, or be sued with
respect to the exercise or nonexercise of its powers. For these
purposes, the powers of the association include, but are not
limited to, the maintenance, management, and operation of the
condominium property. After control of the association is
obtained by unit owners other than the developer, the
association may institute, maintain, settle, or appeal actions
or hearings in its name on behalf of all unit owners concerning
matters of common interest to most or all unit owners,
including, but not limited to, the common elements; the roof and
structural components of a building or other improvements;
mechanical, electrical, and plumbing elements serving an
improvement or a building; representations of the developer
pertaining to any existing or proposed commonly used facilities;
and protesting ad valorem taxes on commonly used facilities and
on units; and may defend actions in eminent domain or bring
inverse condemnation actions. If the association has the
authority to maintain a class action, the association may be
joined in an action as representative of that class with
reference to litigation and disputes involving the matters for
which the association could bring a class action. Nothing herein
limits any statutory or common-law right of any individual unit
owner or class of unit owners to bring any action without
participation by the association which may otherwise be
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available.
(b) An attorney may not represent a board if the attorney
represents the management company of the association.
(9) PURCHASE OF UNITS. —The association has the power,
unless prohibited by the declaration, articles of incorporation,
or bylaws of the association, to purchase units in the
condominium and to acquire and hold, lease, mortgage, and convey
them. There shall be no limitation on the association's right to
purchase a unit at a foreclosure sale resulting from the
association's foreclosure of its lien for unpaid assessments, or
to take title by deed in lieu of foreclosure. However, a board
member or management company may not purchase a unit at a
foreclosure sale resulting from the association's foreclosure of
its lien for unpaid assessments or take title by deed in lieu of
foreclosure.
(12) OFFICIAL RECORDS. —
(a) From the inception of the association, the association
shall maintain each of the following items, if applicable, which
constitutes the official records of the association:
1. A copy of the plans, permits, warranties, and other
items provided by the developer pursuant to s. 718.301(4).
2. A photocopy of the recorded declaration of condominium
of each condominium operated by the association and each
amendment to each declaration.
3. A photocopy of the recorded bylaws of the association
and each amendment to the bylaws.
4. A certified copy of the articles of incorporation of the
association, or other documents creating the association, and
each amendment thereto.
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5. A copy of the current rules of the association.
6. A book or books that contain the minutes of all meetings
of the association, the board of administration, and the unit
owners, which minutes must be retained for at least 7 years.
7. A current roster of all unit owners and their mailing
addresses, unit identifications, voting certifications, and, if
known, telephone numbers. The association shall also maintain
the electronic mailing addresses and facsimile numbers of unit
owners consenting to receive notice by electronic transmission.
The electronic mailing addresses and facsimile numbers are not
accessible to unit owners if consent to receive notice by
electronic transmission is not provided in accordance with sub -
subparagraph (c)5.e. subparagraph (c)5. However, the association
is not liable for an inadvertent disclosure of the electronic
mail address or facsimile number for receiving electronic
transmission of notices.
8. All current insurance policies of the association and
condominiums operated by the association.
9. A current copy of any management agreement, lease, or
other contract to which the association is a party or under
which the association or the unit owners have an obligation or
responsibility.
10. Bills of sale or transfer for all property owned by the
association.
11. Accounting records for the association and separate
accounting records for each condominium that the association
operates. All accounting records must be maintained for at least
7 years. Any person who knowingly or intentionally defaces or
destroys such records, or who knowingly or intentionally fails
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to create or maintain such records, with the intent of causing
harm to the association or one or more of its members, is
personally subject to a civil penalty pursuant to s.
718.501(1)(d). The accounting records must include, but are not
limited to:
a. Accurate, itemized, and detailed records of all receipts
and expenditures.
b. A current account and a monthly, bimonthly, or quarterly
statement of the account for each unit designating the name of
the unit owner, the due date and amount of each assessment, the
amount paid on the account, and the balance due.
c. All audits, reviews, accounting statements, and
financial reports of the association or condominium.
d. All contracts for work to be performed. Bids for work to
be performed are also considered official records and must be
maintained by the association.
12. Ballots, sign -in sheets, voting proxies, and all other
papers relating to voting by unit owners, which must be
maintained for 1 year from the date of the election, vote, or
meeting to which the document relates, notwithstanding paragraph
(b) .
13. All rental records if the association is acting as
agent for the rental of condominium units.
14. A copy of the current question and answer sheet as
described in s. 718.504.
15. All other written records of the association not
specifically included in the foregoing which are related to the
operation of the association.
16. A copy of the inspection report as described in s.
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718.301 (4) (p) .
17. Bids for materials, equipment, or services.
(c)1. The official records of the association are open to
inspection by any association member, or the authorized
representative of such member, or the renter of such member's
unit at all reasonable times. The right to inspect the records
includes the right to make or obtain copies, at the reasonable
expense, if any, of the member, authorized representative of
such member, or the renter of such member's unit. The
association may adopt reasonable rules regarding the frequency,
time, location, notice, and manner of record inspections and
copying. The failure of an association to provide the records
within 10 working days after receipt of a written request
creates a rebuttable presumption that the association willfully
failed to comply with this paragraph. A unit owner who is denied
access to official records is entitled to the actual damages or
minimum damages for the association's willful failure to comply.
Minimum damages are $50 per calendar day for up to 10 days,
beginning on the llth working day after receipt of the written
request. The failure to permit inspection entitles any person
prevailing in an enforcement action to recover reasonable
attorney fees from the person in control of the records who,
directly or indirectly, knowingly denied access to the records.
2. Any director or member of the board or association who
knowingly, willfully, and repeatedly violates subparagraph 1.
commits a misdemeanor of the second degree, punishable as
provided in s. 775.082 or s. 775.083. For purposes of this
subparagraph, the term "repeatedly violates" means more than two
violations within a 12-month period.
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3. Any person who knowingly or intentionally defaces or
destroys accounting records that are required by this chapter to
be maintained during the period for which such records are
required to be maintained, or who knowingly or intentionally
fails to create or maintain accounting records that are required
to be created or maintained, with the intent of causing harm to
the association or one or more of its members, commits a
misdemeanor of the first degree, punishable as provided in s.
775.082 or s. 775.083.
4. Any person who willfully and knowingly refuses to
release or otherwise produce association records with the intent
of facilitating the commission of a crime or avoiding or
escaping detection, arrest, trial, or punishment for a crime
commits a felony of the third degree, punishable as provided in
s. 775.082, s. 775.083, or s. 775.084 is personally subjcct to a
civil pcnalty pursuant to s. 718.501(1)(d).
5. The association shall maintain an adequate number of
copies of the declaration, articles of incorporation, bylaws,
and rules, and all amendments to each of the foregoing, as well
as the question and answer sheet as described in s. 718.504 and
year-end financial information required under this section, on
the condominium property to ensure their availability to unit
owners and prospective purchasers, and may charge its actual
costs for preparing and furnishing these documents to those
requesting the documents. An association shall allow a member or
his or her authorized representative to use a portable device,
including a smartphone, tablet, portable scanner, or any other
technology capable of scanning or taking photographs, to make an
electronic copy of the official records in lieu of the
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association's providing the member or his or her authorized
representative with a copy of such records. The association may
not charge a member or his or her authorized representative for
the use of a portable device. Notwithstanding this paragraph,
the following records are not accessible to unit owners:
a.4— Any record protected by the lawyer -client privilege as
described in s. 90.502 and any record protected by the work -
product privilege, including a 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 which
was prepared exclusively for civil or criminal litigation or for
adversarial administrative proceedings, or which was prepared in
anticipation of such litigation or proceedings until the
conclusion of the litigation or proceedings.
b.2-, Information obtained by an association in connection
with the approval of the lease, sale, or other transfer of a
unit.
c.a Personnel records of association or management company
employees, including, but not limited to, disciplinary, payroll,
health, and insurance records. For purposes of this sub -
subparagraph subparagraph, the term "personnel records" does not
include written employment agreements with an association
employee or management company, or budgetary or financial
records that indicate the compensation paid to an association
employee.
d.4— Medical records of unit owners.
e.&, Social security numbers, driver license numbers,
credit card numbers, e-mail addresses, telephone numbers,
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facsimile numbers, emergency contact information, addresses of a
unit owner other than as provided to fulfill the association's
notice requirements, and other personal identifying information
of any person, excluding the person's name, unit designation,
mailing address, property address, and any address, e-mail
address, or facsimile number provided to the association to
fulfill the association's notice requirements. Notwithstanding
the restrictions in this sub -subparagraph subparagraph, an
association may print and distribute to parcel owners a
directory containing the name, parcel address, and all telephone
numbers of each parcel owner. However, an owner may exclude his
or her telephone numbers from the directory by so requesting in
writing to the association. An owner may consent in writing to
the disclosure of other contact information described in this
sub -subparagraph subparagraph. The association is not liable for
the inadvertent disclosure of information that is protected
under this sub -subparagraph subparagraph if the information is
included in an official record of the association and is
voluntarily provided by an owner and not requested by the
association.
f.-6, Electronic security measures that are used by the
association to safeguard data, including passwords.
g.q= The software and operating system used by the
association which allow the manipulation of data, even if the
owner owns a copy of the same software used by the association.
The data is part of the official records of the association.
(g)1. An association with 500 or more units that does not
manage timeshare units shall post digital copies of the
documents specified in subparagraph 2. on its website.
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a. The association's website must be:
(I) An independent website or web portal wholly owned and
operated by the association; or
(II) A website or web portal operated by a third -party
provider with whom the association owns, leases, rents, or
otherwise obtains the right to operate a web page, subpage, web
portal, or collection of subpages or web portals dedicated to
the association's activities and on which required notices,
records, and documents may be posted by the association.
b. The association's website must be accessible through the
Internet and must contain a subpage, web portal, or other
protected electronic location that is inaccessible to the
general public and accessible only to unit owners, employees of
the association, and the department.
c. Upon a unit owner's request, the association must
provide the unit owner with a username and password and access
to the protected sections of the association's website that
contain any notices, records, or documents that must be
electronically provided.
2. A current copy of the following documents must be posted
in digital format on the association's website:
a. The recorded declaration of condominium of each
condominium operated by the association and each amendment to
each declaration.
b. The recorded bylaws of the association and each
amendment to the bylaws.
c. The articles of incorporation of the association, or
other documents creating the association, and each amendment
thereto. The copy posted pursuant to this sub -subparagraph must
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be a certified copy.
d. The rules of the association.
e. Any management agreement, lease, or other contract to
which the association is a party or under which the association
or the unit owners have an obligation or responsibility.
Summaries of bids for materials, equipment, or services must be
maintained on the website for 1 year.
f. The annual budget required by s. 718.112(2)(f) and any
proposed budget to be considered at the annual meeting.
g. The financial report required by subsection (13) and any
proposed financial report to be considered at a meeting.
h. The certification of each director required by s.
718.112 (2) (d) 4.b.
i. All contracts or transactions between the association
and any director, officer, corporation, firm, or association
that is not an affiliated condominium association or any other
entity in which an association director is also a director or
officer and financially interested.
j. Any contract or document regarding a conflict of
interest or possible conflict of interest as provided in ss.
468.436(2) and 718.3026(3).
k. The notice of any board meeting and the agenda for the
meeting, as required by s. 718.112(2)(d)3., no later than 14
days before the meeting. The notice must be posted in plain view
on the front page of the website, or on a separate subpage of
the website labeled "Notices" which is conspicuously visible and
linked from the front page. The association must also post on
its website any documents to be considered during the meeting or
listed on the agenda at least 7 days before the meeting at which
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the document or the information within the document will be
considered, including the following documents:
(I) The proposed annual budget required by s.
718 112(2)(f), which must be provided at least 14 days before
the meeting.
(II) The proposed financial report required by subsection
(13) .
3. The association shall ensure that the information and
records described in paragraph (c), which are not permitted to
be accessible to unit owners, are not posted on the
association's website. If protected information or information
restricted from being accessible to unit owners is included in
documents that are required to be posted on the association's
website, the association shall ensure the information is
redacted before posting the documents online.
(13) FINANCIAL REPORTING. —Within 90 days after the end of
the fiscal year, or annually on a date provided in the bylaws,
the association shall prepare and complete, or contract for the
preparation and completion of, a financial report for the
preceding fiscal year. Within 21 days after the final financial
report is completed by the association or received from the
third party, but not later than 120 days after the end of the
fiscal year or other date as provided in the bylaws, the
association shall mail to each unit owner at the address last
furnished to the association by the unit owner, or hand deliver
to each unit owner, a copy of the most recent financial report
or a notice that a copy of the most recent financial report will
be mailed or hand delivered to the unit owner, without charge,
within 5 business days after ipon receipt of a written request
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from the unit owner. The division shall adopt rules setting
forth uniform accounting principles and standards to be used by
all associations and addressing the financial reporting
requirements for multicondominium associations. The rules must
include, but not be limited to,standards for presenting a
summary of association reserves, including a good faith estimate
disclosing the annual amount of reserve funds that would be
necessary for the association to fully fund reserves for each
reserve item based on the straight-line accounting method. This
disclosure is not applicable to reserves funded via the pooling
method. In adopting such rules, the division shall consider the
number of members and annual revenues of an association.
Financial reports shall be prepared as follows:
(a) An association that meets the criteria of this
paragraph shall prepare a complete set of financial statements
in accordance with generally accepted accounting principles. The
financial statements must be based upon the association's total
annual revenues, as follows:
1. An association with total annual revenues of $150,000 or
more, but less than $300,000, shall prepare compiled financial
statements.
2. An association with total annual revenues of at least
$300,000, but less than $500,000, shall prepare reviewed
financial statements.
3. An association with total annual revenues of $500,000 or
more shall prepare audited financial statements.
(b)1. An association with total annual revenues of less
than $150,000 shall prepare a report of cash receipts and
expenditures.
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2. An association that operates fewer than 50 units,
regardless of the association's annual revenues, shall prepare a
report of cash receipts and expenditures in lieu of financial
statements required by paragraph (a).
3. A report of cash receipts and disbursements 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 accumulated and expended for capital expenditures,
deferred maintenance, and any other category for which the
association maintains reserves.
(c) An association may prepare, without a meeting of or
approval by the unit owners:
1. Compiled, reviewed, or audited financial statements, if
the association is required to prepare a report of cash receipts
and expenditures;
2. Reviewed or audited financial statements, if the
association is required to prepare compiled financial
statements; or
3. Audited financial statements if the association is
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:
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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.
20171682_
Such meeting and approval must occur before the end of the
fiscal year and is effective only for the fiscal year in which
the vote is taken, except that the approval may also be
effective for the following fiscal year. If the developer has
not turned over control of the association, all unit owners,
including the developer, may vote on issues related to the
preparation of the association's financial reports, from the
date of incorporation of the association through the end of the
second fiscal year after the fiscal year in which the
certificate of a surveyor and mapper is recorded pursuant to s.
718.104(4)(e) or an instrument that transfers title to a unit in
the condominium which is not accompanied by a recorded
assignment of developer rights in favor of the grantee of such
unit is recorded, whichever occurs first. Thereafter, all unit
owners except the developer may vote on such issues until
control is turned over to the association by the developer. Any
audit or review prepared under this section shall be paid for by
the developer if done before turnover of control of the
association. An association may not waive the financial
reporting requirements of this section for more than 3
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consecutive years.
(e) If an association has not mailed or hand delivered to
the unit owner a copy of the most recent financial report within
5 business days after receipt of a written request from the unit
owner, the unit owner may give notice to the division of the
association's failure to comply. Upon notification, the division
shall give notice to the association that the association must
mail or hand deliver the copy of the most recent financial
report to the unit owner and the division within 5 business days
after such notice. Any association that fails to comply with the
division's request may not waive the financial reporting
requirement provided in paragraph (d). A financial report
received by the division pursuant to this paragraph shall be
maintained, and the division shall provide a copy of such report
to an association member upon his or her request.
Section 2. Paragraphs (d) and (j) of subsection (2) of
section 718.112, Florida Statutes, are amended, and paragraph
(p) is added to that subsection, to read:
718.112 Bylaws.—
(2) REQUIRED PROVISIONS. —The bylaws shall provide for the
following and, if they do not do so, shall be deemed to include
the following:
(d) Unit owner meetings.-
1. An annual meeting of the unit owners shall be held at
the location provided in the association bylaws and, if the
bylaws are silent as to the location, the meeting shall be held
within 45 miles of the condominium property. However, such
distance requirement does not apply to an association governing
a timeshare condominium.
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2. Unless the bylaws provide otherwise, a vacancy on the
board caused by the expiration of a director's term shall be
filled by electing a new board member, and the election must be
by secret ballot. An election is not required if the number of
vacancies equals or exceeds the number of candidates. For
purposes of this paragraph, the term "candidate" means an
eligible person who has timely submitted the written notice, as
described in sub -subparagraph 4.a., of his or her intention to
become a candidate. Except in a timeshare or nonresidential
condominium, or if the staggered term of a board member does not
expire until a later annual meeting, or if all members' terms
would otherwise expire but there are no candidates, the terms of
all board members expire at the annual meeting, and such members
may stand for reelection unless prohibited by the bylaws. If thc
bylaws or articles of incorporation permit terms of no more than
2 years, thc association Board members may serve 2-year terms if
permitted by the bylaws or articles of incorporation. A board
member may not serve more than four consecutive 2-year terms,
unless approved by an affirmative vote of two-thirds of the
total voting interests of the association. If the number of
board members whose terms expire at the annual meeting equals or
exceeds the number of candidates, the candidates become members
of the board effective upon the adjournment of the annual
meeting. Unless the bylaws provide otherwise, any remaining
vacancies shall be filled by the affirmative vote of the
majority of the directors making up the newly constituted board
even if the directors constitute less than a quorum or there is
only one director. In a residential condominium association of
more than 10 units or in a residential condominium association
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that does not include timeshare units or timeshare interests,
coowners of a unit may not serve as members of the board of
directors at the same time unless they own more than one unit or
unless there are not enough eligible candidates to fill the
vacancies on the board at the time of the vacancy. A unit owner
in a residential condominium desiring to be a candidate for
board membership must comply with sub -subparagraph 4.a. and must
be eligible to be a candidate to serve on the board of directors
at the time of the deadline for submitting a notice of intent to
run in order to have his or her name listed as a proper
candidate on the ballot or to serve on the board. A person who
has been suspended or removed by the division under this
chapter, or who is delinquent in the payment of any monetary
obligation due to the association, is not eligible to be a
candidate for board membership and may not be listed on the
ballot. A person who has been convicted of any felony in this
state or in a United States District or Territorial Court, or
who has been convicted of any offense in another jurisdiction
which would be considered a felony if committed in this state,
is not eligible for board membership unless such felon's civil
rights have been restored for at least 5 years as of the date
such person seeks election to the board. The validity of an
action by the board is not affected if it is later determined
that a board member is ineligible for board membership due to
having been convicted of a felony. This subparagraph does not
limit the term of a member of the board of a nonresidential
condominium.
3. The bylaws must provide the method of calling meetings
of unit owners, including annual meetings. Written notice must
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include an agenda, must be mailed, hand delivered, or
electronically transmitted to each unit owner at least 14 days
before the annual meeting, and must be posted in a conspicuous
place on the condominium property at least 14 continuous days
before the annual meeting. Upon notice to the unit owners, the
board shall, by duly adopted rule, designate a specific location
on the condominium property or association property where all
notices of unit owner meetings shall be posted. This requirement
does not apply if there is no condominium property or
association property for posting notices. In lieu of, or in
addition to, the physical posting of meeting notices, 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 condominium association. However, if broadcast notice is
used in lieu of a notice posted physically on the condominium
property, the notice and agenda must be broadcast at least four
times every broadcast hour of each day that a posted notice is
otherwise required under this section. If 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. Unless a unit owner
waives in writing the right to receive notice of the annual
meeting, such notice must be hand delivered, mailed, or
electronically transmitted to each unit owner. Notice for
meetings and notice for all other purposes must be mailed to
each unit owner at the address last furnished to the association
by the unit owner, or hand delivered to each unit owner.
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However, if a unit is owned by more than one person, the
association must provide notice to the address that the
developer identifies for that purpose and thereafter as one or
more of the owners of the unit advise the association in
writing, or if no address is given or the owners of the unit do
not agree, to the address provided on the deed of record. An
officer of the association, or the manager or other person
providing notice of the association meeting, must provide an
affidavit or United States Postal Service certificate of
mailing, to be included in the official records of the
association affirming that the notice was mailed or hand
delivered in accordance with this provision.
4. The members of the board of a residential condominium
shall be elected by written ballot or voting machine. Proxies
may not be used in electing the board in general elections or
elections to fill vacancies caused by recall, resignation, or
otherwise, unless otherwise provided in this chapter. This
subparagraph does not apply to an association governing a
timeshare condominium.
a. At least 60 days before a scheduled election, the
association shall mail, deliver, or electronically transmit, by
separate association mailing or included in another association
mailing, delivery, or transmission, including regularly
published newsletters, to each unit owner entitled to a vote, a
first notice of the date of the election. A unit owner or other
eligible person desiring to be a candidate for the board must
give written notice of his or her intent to be a candidate to
the association at least 40 days before a scheduled election.
Together with the written notice and agenda as set forth in
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subparagraph 3., the association shall mail, deliver, or
electronically transmit a second notice of the election to all
unit owners entitled to vote, together with a ballot that lists
all candidates. Upon request of a candidate, an information
sheet, no larger than 8 1/2 inches by 11 inches, which must be
furnished by the candidate at least 35 days before the election,
must be included with the mailing, delivery, or transmission of
the ballot, with the costs of mailing, delivery, or electronic
transmission and copying to be borne by the association. The
association is not liable for the contents of the information
sheets prepared by the candidates. In order to reduce costs, the
association may print or duplicate the information sheets on
both sides of the paper. The division shall by rule establish
voting procedures consistent with this sub -subparagraph,
including rules establishing procedures for giving notice by
electronic transmission and rules providing for the secrecy of
ballots. Elections shall be decided by a plurality of ballots
cast. There is no quorum requirement; however, at least 20
percent of the eligible voters must cast a ballot in order to
have a valid election. A unit owner may not permit any other
person to vote his or her ballot, and any ballots improperly
cast are invalid. A unit owner who violates this provision may
be fined by the association in accordance with s. 718.303. A
unit owner who needs assistance in casting the ballot for the
reasons stated in s. 101.051 may obtain such assistance. The
regular election must occur on the date of the annual meeting.
Notwithstanding this sub -subparagraph, an election is not
required unless more candidates file notices of intent to run or
are nominated than board vacancies exist.
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b. Within 90 days after being elected or appointed to the
board of an association of a residential condominium, each newly
elected or appointed director shall certify in writing to the
secretary of the association that he or she has read the
association's declaration of condominium, articles of
incorporation, bylaws, and current written policies; that he or
she will work to uphold such documents and policies to the best
of his or her ability; and that he or she will faithfully
discharge his or her fiduciary responsibility to the
association's members. In lieu of this written certification,
within 90 days after being elected or appointed to the board,
the newly elected or appointed director may submit a certificate
of having satisfactorily completed the educational curriculum
administered by a division -approved condominium education
provider within 1 year before or 90 days after the date of
election or appointment. The written certification or
educational certificate is valid and does not have to be
resubmitted as long as the director serves on the board without
interruption. A director of an association of a residential
condominium who fails to timely file the written certification
or educational certificate is suspended from service on the
board until he or she complies with this sub -subparagraph. The
board may temporarily fill the vacancy during the period of
suspension. The secretary shall cause the association to retain
a director's written certification or educational certificate
for inspection by the members for 5 years after a director's
election or the duration of the director's uninterrupted tenure,
whichever is longer. Failure to have such written certification
or educational certificate on file does not affect the validity
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of any board action.
c. Any challenge to the election process must be commenced
within 60 days after the election results are announced.
5. Any approval by unit owners called for by this chapter
or the applicable declaration or bylaws, including, but not
limited to, the approval requirement in s. 718.111(8), must be
made at a duly noticed meeting of unit owners and is subject to
all requirements of this chapter or the applicable condominium
documents relating to unit owner decisionmaking, except that
unit owners may take action by written agreement, without
meetings, on matters for which action by written agreement
without meetings is expressly allowed by the applicable bylaws
or declaration or any law that provides for such action.
6. Unit owners may waive notice of specific meetings if
allowed by the applicable bylaws or declaration or any law.
Notice of meetings of the board of administration, unit owner
meetings, except unit owner meetings called to recall board
members under paragraph (j), and committee meetings may be given
by electronic transmission to unit owners who consent to receive
notice by electronic transmission.
7. Unit owners have the right to participate in meetings of
unit owners with reference to all designated agenda items.
However, the association may adopt reasonable rules governing
the frequency, duration, and manner of unit owner participation.
8. A unit owner may tape record or videotape a meeting of
the unit owners subject to reasonable rules adopted by the
division.
9. Unless otherwise provided in the bylaws, any vacancy
occurring on the board before the expiration of a term may be
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filled by the affirmative vote of the majority of the remaining
directors, even if the remaining directors constitute less than
a quorum, or by the sole remaining director. In the alternative,
a board may hold an election to fill the vacancy, in which case
the election procedures must conform to sub -subparagraph 4.a.
unless the association governs 10 units or fewer and has opted
out of the statutory election process, in which case the bylaws
of the association control. Unless otherwise provided in the
bylaws, a board member appointed or elected under this section
shall fill the vacancy for the unexpired term of the seat being
filled. Filling vacancies created by recall is governed by
paragraph (j) and rules adopted by the division.
10. This chapter does not limit the use of general or
limited proxies, require the use of general or limited proxies,
or require the use of a written ballot or voting machine for any
agenda item or election at any meeting of a timeshare
condominium association or nonresidential condominium
association.
Notwithstanding subparagraph (b)2. and sub -subparagraph 4.a., an
association of 10 or fewer units may, by affirmative vote of a
majority of the total voting interests, provide for different
voting and election procedures in its bylaws, which may be by a
proxy specifically delineating the different voting and election
procedures. The different voting and election procedures may
provide for elections to be conducted by limited or general
proxy.
(j) Recall of board members. —Subject to s. 718.301, any
member of the board of administration may be recalled and
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removed from office with or without cause by the vote or
agreement in writing by a majority of all the voting interests.
A special meeting of the unit owners to recall a member or
members 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 unit owners,- 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.
1. If the recall is approved by a majority of all voting
interests by a vote at a meeting, the recall will be effective
as provided in this paragraph. The board shall duly notice and
hold a board meeting within 5 full business days after the
adjournment of the unit owner meeting to recall one or more
board members. At thc meeting, thc board shall either certify
thc recall, in which case Such member or members shall be
recalled effective immediately and shall turn over to the board
within 10 full business days after the vote any and all
records and property of the association in their possession, or
shall procccd a3 act forth in subparagraph 3.
2. If the proposed recall is by an agreement in writing by
a majority of all voting interests, the agreement in writing 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. The board of
administration shall duly notice and hold a meeting of the board
within 5 full business days after receipt of the agreement in
writing. At thc meeting, thc board shall either certify thc
written agreement to recall a member or members of the board, in
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immediately and shall turn over to thc board within 5 full
business days any and all records and property of thc
aJrocra e -in tyrei - e�scooion,,—er precccd ao dcocribex-in
subparagraph 3.
3. If thc board determines not to ccrtify thc written
agrccmcnt to rccall a member or members of thc board, or does
not ccrtify thc recall by a vote at a meeting, The board shall,
within 5 full business days after thc meeting, file with thc
division a pctition for arbitration pursuun-t to thc procedures
in s. 718.1255. For thc purpoocs of this section, thc unit
owners who votcd at thc meeting or who-cxc-atcd thc agrccmcnt in
writing shall constitute one party under thc pctition for
arbitration. If thc arbitrator ccrtifics thc rccall as to any
member or mcmbcro of -thc board, thc rccall will be cffcctivc
upon mailing of the final ordcr of arbitration to thc
association. If thc association fails to comply with thc ordcr
of thc arbitrator, thc division may take action pursuant to s.
718.501. Any member or members s recalled shall deliver to thc
board any and all records of thc association in thcir possession
within 5--full busi css days aftcr thc cffcctivc date of thc
rccall.
3.4— 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 unit owner recall meeting, the recall shall
be deemed effective and the board members so recalled shall
immediately turn over to the board within 10 full business days
after the vote any and all records and property of the
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association.
4.§— If the board fails to duly notice and hold the
required meeting or fails to file the required petition, the
unit owner representative may file a petition pursuant to s.
718.1255 challenging the board's failure to act. The petition
must be filed within 60 days after the expiration of the
applicable 5-full-business-day period. The review of a petition
under this subparagraph is limited to the sufficiency of service
on the board and the facial validity of the written agreement or
ballots filed.
5. If a vacancy occurs on the board as a result of a
recall or removal and less than a majority of the board members
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. If
vacancies occur on the board as a result of a recall and a
majority or more of the board members are removed, the vacancies
shall be filled in accordance with procedural rules to be
adopted by the division, which rules need not be consistent with
this subsection. The rules must provide procedures governing the
conduct of the recall election as well as the operation of the
association during the period after a recall but before the
recall election.
6.-- A board member who has been recalled may file a
petition pursuant to s. 718.1255 challenging the validity of the
recall. The petition must be filed within 60 days after the
recall deemed certified. The association and the unit owner
representative shall be named as the respondents.
7.4-- The division may not accept for filing a recall
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petition, whether filed pursuant to subparagraph 1.,
subparagraph 2., subparagraph 4. 5—, or subparagraph 6. 7. and
regardless of whether the recall was certified, when there are
60 or fewer days until the scheduled reelection of the board
member sought to be recalled or when 60 or fewer days have
elapsed since the election of the board member sought to be
recalled.
(p) Service providers; conflicts of interest. —An
association may not employ or contract with any service provider
that is owned or operated by a board member or any person who
has a financial relationship with a board member.
Section 3. Subsection (4) of section 718.1255, Florida
Statutes, is amended to read:
718.1255 Alternative dispute resolution; voluntary
mediation; mandatory nonbinding arbitration; legislative
findings.—
(4) MANDATORY NONBINDING ARBITRATION AND MEDIATION OF
DISPUTES. —The Division of Florida Condominiums, Timeshares, and
Mobile Homes of the Department of Business and Professional
Regulation may shall employ full-time attorneys to act as
arbitrators to conduct the arbitration hearings provided by this
chapter. The division may also certify attorneys who are not
employed by the division to act as arbitrators to conduct the
arbitration hearings provided by this chapter section. No person
may be employed by the department as a full-time arbitrator
unless he or she is a member in good standing of The Florida
Bar. A person may only be certified by the division to act as an
arbitrator if he or she has been a member in good standing of
The Florida Bar for at least 5 years and has mediated or
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arbitrated at least 10 disputes involving condominiums in this
state during the 3 years immediately preceding the date of
application, mediated or arbitrated at least 30 disputes in any
subject area in this state during the 3 years immediately
preceding the date of application, or attained board
certification in real estate law or condominium and planned
development law from The Florida Bar. Arbitrator certification
is valid for 1 year. An arbitrator who does not maintain the
minimum qualifications for initial certification may not have
his or her certification renewed. The department may not enter
into a legal services contract for an arbitration hearing under
this chapter with an attorney who is not a certified arbitrator
unless a certified arbitrator is not available within 50 miles
of the dispute. The department shall adopt rules of procedure to
govern such arbitration hearings including mediation incident
thereto. The decision of an arbitrator shall be final; however,
a decision shall not be deemed final agency action. Nothing in
this provision shall be construed to foreclose parties from
proceeding in a trial de novo unless the parties have agreed
that the arbitration is binding. If judicial proceedings are
initiated, the final decision of the arbitrator shall be
admissible in evidence in the trial de novo.
(a) Prior to the institution of court litigation, a party
to a dispute shall petition the division for nonbinding
arbitration. The petition must be accompanied by a filing fee in
the amount of $50. Filing fees collected under this section must
be used to defray the expenses of the alternative dispute
resolution program.
(b) The petition must recite, and have attached thereto,
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supporting proof that the petitioner gave the respondents:
1. Advance written notice of the specific nature of the
dispute;
2. A demand for relief, and a reasonable opportunity to
comply or to provide the relief; and
3. Notice of the intention to file an arbitration petition
or other legal action in the absence of a resolution of the
dispute.
Failure to include the allegations or proof of compliance with
these prerequisites requires dismissal of the petition without
prejudice.
(c) Upon receipt, the petition shall be promptly reviewed
by the division to determine the existence of a dispute and
compliance with the requirements of paragraphs (a) and (b). If
emergency relief is required and is not available through
arbitration, a motion to stay the arbitration may be filed. The
motion must be accompanied by a verified petition alleging facts
that, if proven, would support entry of a temporary injunction,
and if an appropriate motion and supporting papers are filed,
the division may abate the arbitration pending a court hearing
and disposition of a motion for temporary injunction.
(d) Upon determination by the division that a dispute
exists and that the petition substantially meets the
requirements of paragraphs (a) and (b) and any other applicable
rules, the division shall assign or enter into a contract with
an arbitrator and serve a copy of the petition shall be scrvcd
by the division upon all respondents. The arbitrator shall
conduct a hearing within 30 days after being assigned or
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entering into a contract unless the petition is withdrawn or a
continuance is granted for good cause shown.
(e) Before or after the filing of the respondents' answer
to the petition, any party may request that the arbitrator refer
the case to mediation under this section and any rules adopted
by the division. Upon receipt of a request for mediation, the
division shall promptly contact the parties to determine if
there is agreement that mediation would be appropriate. If all
parties agree, the dispute must be referred to mediation.
Notwithstanding a lack of an agreement by all parties, the
arbitrator may refer a dispute to mediation at any time.
(f) Upon referral of a case to mediation, the parties must
select a mutually acceptable mediator. To assist in the
selection, the arbitrator shall provide the parties with a list
of both volunteer and paid mediators that have been certified by
the division under s. 718.501. If the parties are unable to
agree on a mediator within the time allowed by the arbitrator,
the arbitrator shall appoint a mediator from the list of
certified mediators. If a case is referred to mediation, the
parties shall attend a mediation conference, as scheduled by the
parties and the mediator. If any party fails to attend a duly
noticed mediation conference, without the permission or approval
of the arbitrator or mediator, the arbitrator must impose
sanctions against the party, including the striking of any
pleadings filed, the entry of an order of dismissal or default
if appropriate, and the award of costs and attorneys' fees
incurred by the other parties. Unless otherwise agreed to by the
parties or as provided by order of the arbitrator, a party is
deemed to have appeared at a mediation conference by the
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physical presence of the party or its representative having full
authority to settle without further consultation, provided that
an association may comply by having one or more representatives
present with full authority to negotiate a settlement and
recommend that the board of administration ratify and approve
such a settlement within 5 days from the date of the mediation
conference. The parties shall share equally the expense of
mediation, unless they agree otherwise.
(g) The purpose of mediation as provided for by this
section is to present the parties with an opportunity to resolve
the underlying dispute in good faith, and with a minimum
expenditure of time and resources.
(h) Mediation proceedings must generally be conducted in
accordance with the Florida Rules of Civil Procedure, and these
proceedings are privileged and confidential to the same extent
as court -ordered mediation. Persons who are not parties to the
dispute are not allowed to attend the mediation conference
without the consent of all parties, with the exception of
counsel for the parties and corporate representatives designated
to appear for a party. If the mediator declares an impasse after
a mediation conference has been held, the arbitration proceeding
terminates, unless all parties agree in writing to continue the
arbitration proceeding, in which case the arbitrator's decision
shall be binding or nonbinding, as agreed upon by the parties;
in the arbitration proceeding, the arbitrator shall not consider
any evidence relating to the unsuccessful mediation except in a
proceeding to impose sanctions for failure to appear at the
mediation conference. If the parties do not agree to continue
arbitration, the arbitrator shall enter an order of dismissal,
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and either party may institute a suit in a court of competent
jurisdiction. The parties may seek to recover any costs and
attorneys' fees incurred in connection with arbitration and
mediation proceedings under this section as part of the costs
and fees that may be recovered by the prevailing party in any
subsequent litigation.
(i) Arbitration shall be conducted according to rules
adopted by the division. The filing of a petition for
arbitration shall toll the applicable statute of limitations.
(j) At the request of any party to the arbitration, the
arbitrator shall issue subpoenas for the attendance of witnesses
and the production of books, records, documents, and other
evidence and any party on whose behalf a subpoena is issued may
apply to the court for orders compelling such attendance and
production. Subpoenas shall be served and shall be enforceable
in the manner provided by the Florida Rules of Civil Procedure.
Discovery may, in the discretion of the arbitrator, be permitted
in the manner provided by the Florida Rules of Civil Procedure.
Rules adopted by the division may authorize any reasonable
sanctions except contempt for a violation of the arbitration
procedural rules of the division or for the failure of a party
to comply with a reasonable nonfinal order issued by an
arbitrator which is not under judicial review.
(k) The arbitration decision shall be rendered within 30
days after the hearing and presented to the parties in writing.
An arbitration decision is final in those disputes in which the
parties have agreed to be bound. An arbitration decision is also
final if a complaint for a trial de novo is not filed in a court
of competent jurisdiction in which the condominium is located
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within 30 days. The right to file for a trial de novo entitles
the parties to file a complaint in the appropriate trial court
for a judicial resolution of the dispute. The prevailing party
in an arbitration proceeding shall be awarded the costs of the
arbitration and reasonable attorney's fees in an amount
determined by the arbitrator. Such an award shall include the
costs and reasonable attorney's fees incurred in the arbitration
proceeding as well as the costs and reasonable attorney's fees
incurred in preparing for and attending any scheduled mediation.
An arbitrator's failure to render a written decision within 30
days after the hearing may result in the cancellation of his or
her arbitration certification.
(1) The party who files a complaint for a trial de novo
shall be assessed the other party's arbitration costs, court
costs, and other reasonable costs, including attorney's fees,
investigation expenses, and expenses for expert or other
testimony or evidence incurred after the arbitration hearing if
the judgment upon the trial de novo is not more favorable than
the arbitration decision. If the judgment is more favorable, the
party who filed a complaint for trial de novo shall be awarded
reasonable court costs and attorney's fees.
(m) Any party to an arbitration proceeding may enforce an
arbitration award by filing a petition in a court of competent
jurisdiction in which the condominium is located. A petition may
not be granted unless the time for appeal by the filing of a
complaint for trial de novo has expired. If a complaint for a
trial de novo has been filed, a petition may not be granted with
respect to an arbitration award that has been stayed. If the
petition for enforcement is granted, the petitioner shall
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recover reasonable attorney's fees and costs incurred in
enforcing the arbitration award. A mediation settlement may also
be enforced through the county or circuit court, as applicable,
and any costs and fees incurred in the enforcement of a
settlement agreement reached at mediation must be awarded to the
prevailing party in any enforcement action.
Section 4. Section 718.129, Florida Statutes, is created to
read:
718.129 Fraudulent voting activities related to association
elections; penalties. —The following acts constitute fraudulent
voting activities related to association elections:
(1) A person who willfully, knowingly, and falsely swears
or affirms to an oath or affirmation, or procures another person
to willfully, knowingly, and falsely swear or affirm to an oath
or affirmation, in connection with or arising out of voting or
casting a ballot in an association election commits a felony of
the third degree, punishable as provided in s. 775.082, s.
775.083, or s. 775.084.
(2) A person who willfully and knowingly perpetrates or
attempts to perpetrate, or willfully and knowingly aids another
person in perpetrating or attempting to perpetrate, fraud in
connection with or arising out of a vote or ballot cast, to be
cast, or attempted to be cast by an elector in an association
election commits a felony of the third degree, punishable as
provided in s. 775.082, s. 775.083, or s. 775.084.
(3) A person who willfully, knowingly, and fraudulently
changes or attempts to change a vote or ballot cast, to be cast,
or attempted to be cast by an elector in an association election
to prevent such elector from voting or casting a ballot as he or
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she intended in such election commits a felony of the third
degree, punishable as provided in s. 775.082, s. 775.083, or s.
775.084.
(4) (a) A person who willfully and knowingly aids or advises
another person in committing a violation of this section shall
be punished as if he or she had committed the violation.
(b) A person who willfully and knowingly agrees, conspires,
combines, or confederates with another person in committing a
violation of this section shall be punished as if he or she had
committed the violation.
(c) A person who willfully and knowingly aids or advises a
person who has committed a violation of this section in avoiding
or escaping detection, arrest, trial, or punishment shall be
punished as if he or she had committed the violation. This
paragraph does not prohibit a member of The Florida Bar from
giving legal advice to a client.
Section 5. Subsection (5) is added to section 718.3025,
Florida Statutes, to read:
718.3025 Agreements for operation, maintenance, or
management of condominiums; specific requirements.—
(5) A party contracting to provide maintenance or
management services, or a board member of such party, may not:
(a) Own 50 percent or more of the units in the condominium.
(b) Purchase a property subject to a lien by the
association.
Section 6. Section 718.3027, Florida Statutes, is created
to read:
718.3027 Conflicts of interest.—
(1) Directors and officers of a board of an association
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that is not a timeshare condominium association, and the
relatives of such directors and officers, must disclose to the
board any activity that may reasonably be construed to be a
conflict of interest. A rebuttable presumption of a conflict of
interest exists if any of the following occurs without prior
notice, as required in subsection (4):
(a) Any director, officer, or relative of any director or
officer enters into a contract for goods or services with the
association.
(b) Any director, officer, or relative of any director or
officer holds an interest in a corporation, limited liability
corporation, partnership, limited liability partnership, or
other business entity that conducts business with the
association or proposes to enter into a contract or other
transaction with the association.
(2) If any director, officer, or relative of any director
or officer proposes to engage in an activity that is a conflict
of interest, as described in subsection (1), the proposed
activity must be listed on, and all contracts and transactional
documents related to the proposed activity must be attached to,
the meeting agenda. If the board votes against the proposed
activity, the director, officer, or relative must notify the
board in writing of his or her intention not to pursue the
proposed activity, or the director or officer shall withdraw
from office. If the board finds that any officer or director has
violated this subsection, the board must immediately remove the
officer or director from office. The vacancy shall be filled
according to general law.
(3) Any director, officer, or relative of any director or
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officer who is a party to, or has an interest in, an activity
that is a possible conflict of interest, as described in
subsection (1), may attend the meeting at which the activity is
considered by the board, and is authorized to make a
presentation to the board regarding the activity. After the
presentation, the director, officer, or relative must leave the
meeting during the discussion of, and the vote on, the activity.
Any director or officer who is a party to, or has an interest
in, the activity must recuse himself or herself from the vote.
(4) The board must provide notice to unit owners of a
possible conflict of interest, as described in subsection (1),
in accordance with the procedures in s. 718.112(2)(c). All
contracts and transactional documents related to the possible
conflict of interest must be attached to, and made available
with, the meeting agenda.
(5) Any contract entered into between any director,
officer, or relative of any director or officer and the
association that is not properly noticed before consideration in
accordance with the procedures in s. 718.112(2)(c) is null and
void.
Section 7. Subsection (5) of section 718.303, Florida
Statutes, is amended, and subsection (8) is added to that
section, to read:
718.303 Obligations of owners and occupants; remedies.—
(5) An association may suspend the voting rights of a unit
owner or member due to nonpayment of any fee, fine, or other
monetary obligation due to the association which is more than
$1,000 and more than 90 days delinquent. Proof of such
obligation must be provided to the unit owner or member 30 days
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before such suspension takes effect. A voting interest or
consent right allocated to a unit owner or member which has been
suspended by the association shall be subtracted from the total
number of voting interests in the association, which shall be
reduced by the number of suspended voting interests when
calculating the total percentage or number of all voting
interests available to take or approve any action, and the
suspended voting interests shall not be considered for any
purpose, including, but not limited to, the percentage or number
of voting interests necessary to constitute a quorum, the
percentage or number of voting interests required to conduct an
election, or the percentage or number of voting interests
required to approve an action under this chapter or pursuant to
the declaration, articles of incorporation, or bylaws. The
suspension ends upon full payment of all obligations currently
due or overdue the association. The notice and hearing
requirements under subsection (3) do not apply to a suspension
imposed under this subsection.
(8) A receiver may not exercise voting rights of any unit
owner whose unit is placed in receivership for the benefit of
the association pursuant to this chapter.
Section 8. Subsection (5) of section 718.5012, Florida
Statutes, is amended to read:
718.5012 Ombudsman; powers and duties. —The ombudsman shall
have the powers that are necessary to carry out the duties of
his or her office, including the following specific powers:
(5) To monitor and review procedures and disputes
concerning condominium elections or meetings, including, but not
limited to, recommending that the division pursue enforcement
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action in any manner where there is reasonable cause to believe
that election misconduct has occurred and reviewing secret
ballots cast at a vote of the association.
Section 9. Section 718.71, Florida Statutes, is created to
read:
718.71 Financial reporting. —An association shall provide an
annual report to the department containing the names of all of
the financial institutions with which it maintains accounts, and
a copy of such report may be obtained from the department upon
written request of any association member.
Section 10. This act shall take effect July 1, 2017.
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