2011 Legislative Updates
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2011 Legislative Updates

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2011 Legislative Updates 2011 Legislative Updates Presentation Transcript

  • BACK TO MENU 2011 Legislative Update Chapter 2011 - 196Effective July 1, 2011 1
  • Condominium Manual Fire Alarm System 633.0215, F.S.Amends § 633.0215, F.S., to add cooperatives or multifamily residential buildings that are less than four stories with an exterior corridor for egress to the exemption from installing a manual fire alarm system required in the Life Safety Code adopted in the Florida Fire Prevention Code. 2
  • Access and Maintenance of Association Records 718.111(12)(a),(c), F.S.Amends § 718.111(12), F.S., to add unit owner facsimile numbers as a record to be maintained by the association if the unit owner consents to receive information via this means. 3 View slide
  • Access and Maintenance of Assn. Records 718.111(12)(a),(c), F.S.Additional records not accessible to unit owners:• Personnel records of association employees, and of the management company, including, but not limited to, disciplinary, payroll, health and insurance records.• However, it now provides that unit owners may access written employment agreements with an association employee or management company, or budgetary or financial records that indicate the compensation paid to an association employee. 4 View slide
  • What Unit Owner Records are Accessible?Unit owners are now only allowed access to a unit owner’s name, unit number, mailing address and property address. However, if the unit owner has consented in writing to receive notice by facsimile, e-mail or other address, these records would be accessible and an owner may consent in writing to the disclosure of protected information. 5
  • Association Records – Liability 718.111(12)(c)5., F.S.The association is not liable for the inadvertent disclosure of information that is protected under this section 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. 6
  • Board of Directors Meetings 718.112, F.S.Amends § 718.112(2)(c)3.b., F.S., to allow condominium association boards the right to hold closed meetings to discuss personnel matters. Note: Personnel are employees of the association and not independent contractors. 7
  • Candidates for the Board 718.112(2)(d)2., F.S.Defines the term “Candidate” as an eligible person who has timely submitted their written notice of intent to become a candidate. This does not apply in a timeshare 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. 8
  • Candidates for the Board continued…Any unit owner or other eligible person desiring to be a candidate for board membership must give written notice of their intent to be a candidate to the association at least 40 days before the scheduled election and must be eligible to serve on the board of directors at the time of the deadline for submitting a notice of intent to run. Therefore: • An incumbent board member is eligible for re-election unless the bylaws prohibit it. • A person who has been suspended or removed by the division under this chapter, or who is more than 90 days delinquent in the payment of any fee, fine, or special or regular assessment, is not eligible for board membership. 9
  • Candidates for the Board continued…• In a association of more than 10 units, co-owners of a unit may not serve on the board at the same time unless they own more than one unit or there are not enough eligible candidates to fill the vacancies on the board at the time of the election.• A convicted felon who has not had their civil rights completely restored for more than 5 years in not eligible for board membership. 10
  • Candidates for the Board continued…• 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. (Formerly they were eligible to be reappointed but were not automatically back on the board.)• Unless otherwise provided in the bylaws, any remaining vacancies shall be filled by the affirmative vote of the majority of the directors making up the new board even if there are less than a quorum or even 1 director. (This would be an appointment.) 11
  • Elections 718.112(2)(d)4., F.S.Timeshare condominiums must now comply with the election requirements under § 718.112(2)(d)4.a, F.S., (formerly § 718.112(2)(d)3., F.S.) However, it 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 machines for any agenda item or election at any meeting of a timeshare condominium association. 12
  • Board Member Certification 718.112(2)(d)4,b., F.S.• Newly elected or appointed board member may submit a certificate of satisfactory completion of educational curriculum administered by a division-approved condominium provider which was either taken 1 year before the election or 90 days after being elected or appointed.• The certification is valid and does not have to be resubmitted as long as the director continuously serves on the board. 13
  • Hurricane Protection 718.113(5)(a),F.S.Amends § 718.113(5)(a), F.S., to add the terms “impact glass or other code-compliant windows” to the section of the statute that covers hurricane shutter specifications. 14
  • Agreements, Leaseholds and Memberships 718.114, F.S.Amends § 718.114, F.S., to allow unit owners to enter into agreements, acquire leaseholds, memberships, and other possessory or use interests in lands or facilities upon a vote of, or written consent by a majority of the total voting interests of an association or as authorized under the declaration. Consider whether the declaration as originally recorded or amended may authorize a board vote without a unit owner vote as provided in § 718.113(2)(a), F.S. 15
  • Association Foreclosure 718.116(2), F.S.Amends § 718.116(2), F.S., to provide that an association, its successor or assignee that acquires title to a unit through the foreclosure of its lien for assessments is not liable for any unpaid assessments, late fees, interest, or reasonable attorney’s fees and costs that came due before the association’s acquisition of title in favor of an association which holds a superior lien interest on the unit. 16
  • Unit Owner Delinquency Right to Collect from Tenant 718.116(11), F.S.Amends § 718.116(11), F.S., to clarify that when an owner in a condominium is delinquent in the payment of any monetary obligation to the association, the association may demand that the owner’s tenant pay any unpaid monetary obligation due related to the unit to the association until all monetary obligations of the owner have been paid in full. 17
  • Unit Owner Delinquency Notice to Tenant 718.116(11), F.S.• The association must provide the tenant a statutory notice, by hand delivery or United States mail in a specific format when requesting rent.• After receiving the association’s notice, the tenant is not liable to the owner/landlord for any rent paid to the association instead of the owner.• The tenant’s payment to the association begins after receiving notice. If the tenant has already made a payment to the unit owner/landlord for the month the notice was received, the tenant may avoid paying the association for that month if the tenant provides written evidence of payment. 18
  • Unit Owner Delinquency Notice to Tenant continued…• The tenant must pay the association until released or until the tenant vacates the unit.• The tenant is not liable for more than the owner’s delinquency.• The association may evict the owner’s tenant for non- payment after the notice is delivered under Ch. 83, F.S. 19
  • Termination Provision – Timeshare Condominium 718.117(2), F.S.• Amends § 718.117(2), F.S., to add sub-sub paragraph (c), stating a condominium that includes units and timeshare estates where the improvements have been totally destroyed or demolished, may be terminated by a plan of termination proposed by a “whole unit owner” upon filing a petition in court seeking equitable relief.• Within 10 days of filing the petition, the petitioner must record the proposed plan of termination and mail a copy of the proposed plan and petition to each member of the board of directors, if the association has not been dissolved, the managing entity, each unit owner, each timeshare estate owner, and each holder of a recorded mortgage lien affecting a unit or timeshare estate. 20
  • Termination Provision – Timeshare Condominium continued… 718.117(2), F.S.• If the association has not been dissolved, any affected party may intervene in the proceedings to contest the proposed plan of termination.• If no party contests the proposed plan within 45 days of filing the petition, the petitioner may move the court to enter a final judgment to authorize the plan of termination be implemented. The plan will not be implemented until a final judgment is rendered. 21
  • Condominium Termination and Change of Ownership 718.117(3),(4),(11), F.S.Amends § 718.117(3)(4) and (11), F.S., to clarify the condominium termination provision and allows a partial termination as long as the percentages of ownership changes are proportionate to what was terminated. For example, a condominium originally consisted of 100 units with each unit owner having a 1/100 share in the common elements has 50 of the 100 units destroyed by a storm, this change now allows the association to terminate the 50 as long as the ownership interests change to 1/50. This would not be a considered a § 718.110(4), F.S., amendment. 22
  • Condominium Termination and Change of Ownership continued…• Trustee does not get title to surviving units, which remain in the owners’ names.• Proceeds from the partial termination are distributed based on the value of the terminated units and common elements.• Any liens are placed on the unit being terminated and sold. 23
  • Termination and Change of Ownership continued…• The terminated portion may be redeveloped as a condominium.• An amendment to the declaration is recorded for the surviving portion of the condominium to reflect the partial termination. 24
  • Suspension of Use Rights for Document or Rule Violation 718.303(3), F.S.Provides that the association may suspend for a reasonable period of time, the right of a unit owner or a unit owner’s tenant, guest, or invitee, to use the common elements, common facilities, or any other association property for failure to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. 25
  • Fine or Suspension of Use Rights 718.303(3), F.S.• A fine or suspension may not be imposed except after giving at least 14 days’ written notice and an opportunity for a hearing to the unit owner and, if applicable, its occupant, licensee, or invitee. The hearing must be held before a committee of other unit owners who are neither board members nor persons residing in a board member’s household.• If the committee does not agree, the fine or suspension may not be imposed. 26
  • Suspension of Use and Voting Rights More than 90 days delinquent Noticing Requirements• Amends § 718.303(3), F.S., to clarify the noticing procedures to be followed by the condominium association when suspending use and voting rights when an owner is more than 90 days delinquent in the payment of any monetary obligation.• Specifically, it provides that it must be approved at a properly noticed (48 hours) board meeting.• If approved, the board must notify the unit owner and, if applicable, the unit’s occupant, licensee, or invitee by mail or hand delivery. 27
  • Change in Quorum 718.303(5), F.S.• The suspended voting interest or consent right may not be counted towards the total number of voting interests necessary to constitute a quorum, the number of voting interests required to conduct an election, or the number of voting interests required to approve an action under this chapter or pursuant to the declaration, articles of incorporation, or bylaws. - For example if there are 100 units in the association and 10 have lost their voting rights, the quorum requirement would now be based on 90 instead of 100. With 100 units the quorum requirement would be 51 units. For 90, it would be 46 units.• The suspension ends upon full payment of all obligations currently due or overdue the association. 28
  • Bulk Assignee and Bulk Buyer 718.703, F.S.Amends § 718.703, F.S., to redefine the terms “bulk assignee” and “bulk buyer”, to mean a person who acquires title to more than 7 units in a single condominium. Also adds some additional rewording of this section to clarify. 29
  • Bulk Assignee and Bulk Buyer continued…• A mortgagee or its assignee may not be deemed a bulk assignee or a developer by reason of the acquisition of condominium units and receipt of an assignment of some or all of a developer’s rights and therefore doesn’t have to file with the division. A mortgagee or its assignee may exercises the following developer rights without being a bulk assignee or developer: - Sales, leasing, and marketing activities within the condominium; - Exemption from the payment of working capital contributions to the condominium association arising out of, or in connection with, the bulk buyer’s acquisition of the units; and - Exemption from the association’s rights of first refusal if any, for subsequent transfers of title to a third party purchaser. 30
  • Bulk Assignee Assignment of Developer Rights 718.704, F.S.• A bulk assignee (but not a mortgagee or its assignee, see previous slide), is deemed to have assumed and is liable for all duties and responsibilities of the developer under the declaration and this chapter upon its acquisition of title to the units and continuously thereafter, except that it is not liable for warranties of the developer under § 718.203(1) or § 718.618 (converter reserves) except those it assumes and gives in a prospectus or offering circular, or in its purchasers’ contracts.• If the bulk assignee agrees in the assignment, it is liable for the developer’s guarantee from the date of its title, but not liable if it did not accept the assignment of the guarantee. 31
  • Bulk Assignee Assignment of Developer Rights continued…• A bulk assignee can only take those developer rights of the entity it buys from; it can’t reach back to the original developer if the rights were not passed on to the interim buyer, mortgagee or court. If there has been a transfer to another person before the bulk assignee, then this interim assignment determines the extent of the bulk assignee’s assignment.• A copy of the assignment(s) is mandatory to determine what developer rights and liabilities the bulk assignee accepted. 32
  • Bulk Assignee – Turnover 718.705, F.S.• Clarifies the provisions relating to turnover of control of the condominium from a “bulk assignee” to the unit owners. If the developer has not turned over control, then the bulk assignee’s units do not count toward the number of developer units conveyed to calculate the percentages for turnover under § 718.301, F.S.• If the bulk assignee turns over, then it must give the association the § 718.301(4), F.S. items unless it did not get these items from the developer. However, it must make a good faith effort to get the items from the developer and certify those documents it could not get to the association. 33
  • Bulk Assignee and Bulk Buyer – Offering Units 718.706, F.S.• Amends § 718.706, F.S., to revise the provisions pertaining to offering of units by a “bulk assignee” and “bulk buyer”. When the statute addresses the number of units offered for filing purposes, the bill adds offering more than 7 units in a single condominium as a minimum.• Exempts a “bulk assignee” or “bulk buyer” from filing if all of the units they own are offered and conveyed to a single purchaser in a single sale. 34
  • Bulk Assignee and Bulk Buyer – Time Limitation 718.707, F.S.Amends § 718.707, F.S., to clarify that a person acquiring condominium parcels may not be classified as a “bulk assignee” or “bulk buyer” unless the condominium parcels were acquired on or after July 1, 2010, but before July 1, 2012. 35
  • Cooperative Changes Ch. 719 F.S. 36
  • Unit Owner Delinquency Right to Collect from Tenant 719.108(10)(a), F.S.• The association must provide the tenant a statutory notice, by hand delivery or United States mail in a specific format when requesting rent.• After receiving the association’s notice, the tenant is not liable to the owner/landlord for any rent paid to the association instead of the owner.• The tenant’s payment to the association begins after receiving notice. If the tenant has already made a payment to the unit owner/landlord for the month the notice was received, the tenant may avoid paying the association for that month if the tenant provides written evidence of payment. 37
  • Unit Owner Delinquency Notice to Tenant continued…• The tenant must pay the association until released or until the tenant vacates the unit.• The tenant is not liable for more than the owner’s delinquency.• The association may evict the owner’s tenant for non- payment after the notice is delivered under Ch. 83, F.S. 38
  • Suspension of Use Rights for Document Violations 719.303(3)(a), F.S.• Provides that the association may suspend for a “reasonable period of time”, the right of a unit owner or a unit owner’s tenant, guest, or invitee, to use the common elements, common facilities, or any other association property for failure to comply with any provision of the cooperative documents or reasonable rules of the association. “Reasonable period of time” is a question of fact in the specific circumstances and up to a judge. 39
  • Fine or Suspension of Rights 719.303(a), F.S.• A fine of not more than $100 per violation or a total of $1,000, or suspension of rights, may not be imposed except after giving reasonable notice (14 days) and opportunity for a hearing to the unit owner and if applicable, it’s occupant, licensee, or invitee. The hearing must be held before a committee of other unit owners.• If the committee does not agree with the fine or suspension, it may not be imposed. 40
  • 90 Day Delinquency Suspension of Use and Voting Rights Noticing Requirements 719.303(6), F.S.• Adds § 719.303(6), F.S., to clarify the noticing procedures to be followed by the cooperative association when suspending use and voting rights when an owner is more than 90 days delinquent in the payment of any monetary obligation.• Specifically, it provides that it must be approved at a properly noticed board meeting(48 hours).• If approved, the board must notify the unit owner and, if applicable, the unit’s occupant, licensee, or invitee by mail or hand delivery. 41
  • Change in Quorum 719.303(5), F.S.Provides that a voting interest or consent right allocated to a unit or member who has been suspended by the cooperative association may not be counted towards the total numbers of voting interests necessary to constitute a quorum, the number of voting interests required to conduct an election, or the number of voting interests required to approve an action under this chapter or pursuant to the cooperative documents, articles of incorporation, or bylaws. For example if there are 100 units in the cooperative association and 10 have lost their voting rights, the quorum requirement would now be based on 90 instead of 100. With 100 units the quorum requirement would be 51 units. For 90, it would be 46 units. 42
  • Customer Contact CenterFor additional information concerning the Condominium Act and to request copies of educational materials available to condominium unit owners you may contact the Department’s Customer Contact Center at Center at 1-800-226-9101 (Florida Only) or 850-488-1122.You may also e-mail the Department at call.center@dbpr.state.fl.usStatutes and other information concerning the division are available on the World Wide Web at www.myfloridalicense.com/dbpr/lsc/index.html 43