HOA REFORM BILL -- PART II

(Initial Draft)

Section 20.165, Florida Statutes, subparagraph (2) is amended to read: 

20.165 Department of Business and Professional Regulation.-- There is created a Department of Business and Professional Regulation.

(2)(e) Division of Florida Condominiums, Homeowners’ Associations, Timeshares, and Mobile Homes. The executive offices of the division shall be located in Tallahassee . The division may establish and maintain branch offices throughout the state.

Section 720.0102, Florida Statutes is created to read:

720.0102.  Reservation of power to amend or repeal.-- 

The Legislature has the power to amend or repeal all or part of this act at any time, and all homeowners’ associations subject to this act shall be governed by the amendment or repeal.

Section 720.301, Florida Statutes, subparagraphs (7), (13) and (14) are amended to read: 

720.301 Definitions

(7) "Division" means the Division of Florida Condominiums, Homeowners' Associations, Timeshares, and Mobile Homes in the Department of Business and Professional Regulation.

(13) “Special assessment” means any assessment levied against a parcel owner other than the assessment required by a budget adopted annually.

(14) (13) “Voting interest” means the voting rights distributed to the members of the homeowners’ association, pursuant to the governing documents.

Section 720.302, Florida Statutes, subparagraphs (1) and (2) are amended to read: 

720.302 Purposes, scope, and application.--

(1) The purposes of this chapter are to give statutory recognition to corporations not for profit that administer or operate residential communities in this state, to provide regulations 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 as authorized by federal, state, and local laws and the governing documents of the association.

(2) Having provided certain powers and authority to homeowners’ associations and in deed restrictions created by developers of mandated properties in residential communities, the Legislature recognizes that it is necessary to provide regulatory oversight of such associations in order to ensure compliance with federal and state laws and local ordinances. It is the intent of the Legislature to protect the rights of parcel owners by ensuring that the powers and authority granted to homeowners’ associations and in deed restrictions created by developers of mandated properties in residential communities conform to a system of checks and balances in order to prevent abuses by these governing authorities. Further, 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 the 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, which were created before June 14, 1995, and have been accepted by a two-thirds majority of the members, were have been created for the benefit of homeowners’ associations and their 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.

720.3021, Florida Statutes, is created to read:

720.3021 Duties of the division.

  (1) The division has jurisdiction for, and may enforce compliance with, the provisions of this chapter and its rules relating to homeowners’ associations. The division shall respond to complaints, conduct investigations, and impose penalties as provided under s.720.3032.

  (2) The division may prepare and disseminate a prospectus and other information to assist prospective owners, purchasers, lessees, and developers of homeowners’ associations in assessing associated rights, privileges, and duties.

   (3) The division shall establish procedures for providing notice to an association and the developer during the period the developer controls the association if the division is considering the issuance of a declaratory statement with respect to the homeowners’ association or any related document governing such community.

   (4) The division shall annually provide each association with a summary of declaratory statements and formal legal opinions relating to the operations of homeowners’ association which were rendered by the division during the previous year.

   (5) The division shall provide training and educational programs for homeowners’ association board members and parcel owners. The training may include web-based electronic media and live training and seminars in various locations throughout the state. The division may review and approve education and training programs offered by providers and shall maintain a current list of approved programs and providers and make such list available to board members and parcel owners in a reasonable and cost-effective manner.

   (6) The division shall maintain a toll-free telephone number accessible to homeowners’ association parcel owners.

   (7) The division shall develop a program to certify both volunteer and paid mediators to provide mediation of homeowners’ association disputes. Upon request, the division shall provide a list of such mediators to any association, parcel owner, or other participant in arbitration proceedings under s. 718.1255.

    (a) Only volunteer mediators who have received at least 20 hours of training in mediation techniques or who have mediated at least 20 disputes may be included on the list.

     (b) In order to become initially certified by the division, paid mediators must be certified by the Supreme Court to mediate court cases in county or circuit courts. However, the division may, by rule, adopt additional factors related to the mediator’s experience, education, or background. In order to maintain certification, any person initially certified as a paid mediator by the division must comply with any factors or requirements adopted by rule.

    (8) The division may accept grants-in-aid from any source.

    (9) The division shall cooperate with similar agencies in other jurisdictions to establish uniform filing procedures and forms, public offering statements, advertising standards, and rules and common administrative practices.

    (10) The division shall consider notice to a developer to be complete when it is delivered to the address of the developer currently on file with the division.

    (11) In addition to its enforcement authority, the division may issue a notice to show cause, which must provide for a hearing, upon written request, in accordance with chapter 120.

    (12) The division shall adopt a seal by which it shall authenticate its records. Copies of the records of the division, and certificates purporting to relate the facts contained in those records, if authenticated by the seal, shall be prima facie evidence of the records in the courts of this state.

      (13) The division shall submit to the Governor, the President of the Senate, and the Speaker of the House of Representatives an annual report that includes, but need not be limited to, the number of training programs provided for homeowners’ association board members and parcel owners under subsection (5); and the number of complaints received by type, the number and percent of complaints acknowledged in writing within 30 days, the number and percent of resulting investigations conducted within 90 days, and the number of investigations exceeding the 90-day requirement as required under s. 720.3021(1). The annual report must also include an evaluation of the division’s core business processes and make recommendations for improvements, including statutory changes. The report shall be submitted by September 30 following the end of the fiscal year.

     (14) The department may adopt rules to administer and enforce the provisions of this chapter.

Section 720.3022, Florida Statutes, is created to read:

720.3022 Complaints; investigations; service of process; penalty guidelines.--

(1) COMPLAINTS.-- The division may investigate complaints and enforce compliance with respect to homeowners’ associations that are still under developer control and complaints against developers involving improper turnover or failure to turnover pursuant to s. 720.307. After turnover has occurred, the division may only investigate complaints related to financial issues, elections, and parcel owner access to association records pursuant to ss. 720.303(4) and 720.303(5). If a complaint is made, the division must conduct its inquiry with due regard for the interests of the affected parties. Within 30 days after receiving a complaint,

   (a)  The division shall acknowledge the complaint in writing and notify the complainant as to whether the complaint is within the jurisdiction of the division and whether additional information is needed by the division from the complainant.

    (b) The division shall conduct its investigation and, within 90 days after receipt of the original complaint or timely requested additional information, take action upon the complaint. However, the failure to complete the investigation within 90 days does not prevent the division from continuing the investigation, accepting or considering evidence obtained or received after 90 days, or taking administrative action if reasonable cause exists to believe that a violation of this chapter or related rule has occurred.

     (c) If an investigation is not completed within the time limits established in this subsection, the division shall, on a monthly basis, notify the complainant in writing of the status of the investigation.

      (d) When reporting its action to the complainant, the division shall inform the complainant of any right to a hearing pursuant to ss. 120.569 and 120.57.

       (2)  INVESTIGATIONS.-- The division may conduct necessary public or private investigations within or outside this state to determine whether there has been a violation of this chapter or related rules or orders, and to aid in the adoption of needed rules or forms.

       (a) For the purpose of conducting an investigation, the division director, or officer or employee designated by the division director, may administer oaths or affirmations, subpoena witnesses and compel their attendance, take evidence, and require the production of any matter that is relevant to an investigation, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts or any other matter reasonably calculated to lead to the discovery of material evidence. Upon the failure by a person to obey a subpoena or to answer questions propounded by the investigating officer and upon reasonable notice to all affected persons, the division may apply to the circuit court for an order compelling compliance.

        (b) The division may require or permit any person to file a statement in writing, under oath or otherwise, as determined by the division, as to the facts and circumstances concerning a matter to be investigated.

         (c) The division may submit any official written report, worksheet, or other related paper, or a certified copy thereof, compiled, prepared, drafted, or otherwise made and authenticated by a financial examiner or analyst to be admitted as competent evidence in any hearing in which the financial examiner or analyst is available for cross-examination and attests under oath that such documents were prepared as a result of an examination or inspection conducted pursuant to this chapter.

         (d) Notwithstanding any remedies available to parcel owners and associations, if the division has reasonable cause to believe that a violation of any provision of this chapter or related rule has occurred, the division may institute enforcement proceedings in its own name against any developer, association, officer, or member of the board of administration, or its assignees or agents, as follows:

           1. The division may permit a person whose conduct or actions may be under investigation to waive formal proceedings and enter into a consent proceeding whereby orders, rules, or letters of censure or warning, whether formal or informal, may be entered against the person.

            2. The division may issue an order requiring the developer, association, developer-designated officer, or developer designated member of the board of administration, developer designated assignees or agents, community association manager, or community association management firm to cease and desist from the unlawful practice and take such affirmative action as the division determines will carry out the purposes of this chapter. If the division finds that a developer, association, officer, or member of the board of administration, or its assignees or agents, is violating or is about to violate any provision of this chapter, any rule adopted or order issued by the division, or any written agreement entered into with the division, and such violation presents an immediate danger to the public requiring an immediate final order, it may issue an emergency cease and desist order reciting with particularity the facts underlying such findings. The emergency cease and desist order is effective for 90 days. If the division begins nonemergency cease and desist proceedings, the emergency cease and desist order remains effective until the conclusion of the proceedings under ss. 120.569 and 120.57.

            3. If a developer fails to pay any restitution determined by the division to be owed, plus any accrued interest at the highest rate permitted by law, within 30 days after expiration of any appellate time period of a final order requiring payment of restitution or the conclusion of any appeal, whichever is later, the division must bring an action in circuit or county court on behalf of any association, class of parcel owners, lessees, or purchasers for restitution, declaratory relief, injunctive relief, or any other available remedy. The division may also temporarily revoke its acceptance of the filing for the developer to which the restitution relates until payment of restitution is made.

             4. The division may petition the court for the appointment of a receiver or conservator. If appointed, the receiver or conservator may take action to implement the court order to ensure the performance of and to remedy any breach of the order. In addition to all other means provided by law for the enforcement of an injunction or temporary restraining order, the circuit court may impound or sequester the property of a party defendant, including books, papers, documents, and related records, and allow the examination and use of the property by the division and a court-appointed receiver or conservator.

            5. The division may apply to the circuit court for an order of restitution whereby the defendant in an action brought pursuant to subparagraph 4. is ordered to make restitution of those sums shown by the division to have been obtained by the defendant in violation of this chapter. At the option of the court, such restitution is payable to the conservator or receiver or directly to the persons whose funds or assets were obtained in violation of this chapter.

            6. The division may impose a civil penalty against a developer, or association, or its assignee or agent, for any violation of this chapter or related rule. The division may impose a civil penalty individually against an officer or board member who willfully and knowingly violates a provision of this chapter, adopted rule, or a final order of the division; may order the removal of such individual as an officer or from the board of administration or as an officer of the association; and may prohibit such individual from serving as an officer or on the board of a community association for a period of time. The term “willfully and knowingly” means that the division informed the officer or board member that his or her action or intended action violates this chapter, related rule, or a final order of the division and that the officer or board member refused to comply with the requirements of this chapter, related rule, or final order of the division. Before initiating formal agency action under chapter 120, the division must afford the officer or board member an opportunity to voluntarily comply, and if he or she complies within 10 days the officer or board member is not subject to a civil penalty. A penalty may be imposed for each day of continuing violation, but may not exceed a total of $5,000.

            7. If a parcel owner presents the division with proof that the parcel owner has requested access to official records in writing by certified mail, and that after 10 days the parcel owner again made the same request for access to official records in writing by certified mail, and that more than 10 days has elapsed since the second request and the association has still failed or refused to provide access to official records as required by this chapter, the division shall issue a subpoena requiring production of the requested records where the records are kept pursuant to s. 720.303.

            8. In addition to subparagraph 6., the division may seek the imposition of a civil penalty through the circuit court for any violation for which the division may issue a notice to show cause under subsection s. 720.302(11). The civil penalty shall be at least $500 but may not exceed $5,000 for each violation. The court may also award to the prevailing party court costs and reasonable attorney fees and, if the division prevails, may also award reasonable costs of investigation.

    (e) Homeowners’ association directors, officers, and employees; homeowners’ association developers and community association managers; and community association management firms have an ongoing duty to reasonably cooperate with the division in any investigation pursuant to this chapter. The division shall refer to local law enforcement any person whom the division believes has altered, destroyed, concealed, or removed any record, document, or thing required to be kept or maintained under this chapter for the purpose of impairing its verity or availability to the department’s investigation.

     (f) The division may contract with agencies in this state or other jurisdictions to perform investigative functions.

      (g) The division shall establish by rule the standards for reimbursement of actual verified expenses incurred in connection with an onsite review or investigation.

      (3) SERVICE OF PROCESS.--

      (a) In addition to the methods of service provided for in the Florida Rules of Civil Procedure and under state law, service may be made and shall be binding upon a defendant or respondent if:

           1. The division, acting as the petitioner or plaintiff, immediately sends a copy of the process and of the pleading by certified mail to the defendant or respondent at his or her last known address; and

            2. The division files an affidavit of compliance with this subsection on or before the return date of the process or within the time set by the court.

         (b) If any person, including any nonresident of this state, allegedly engages in conduct prohibited by this chapter, or any rule or order of the division, and has not filed a consent to service of process, and personal jurisdiction over him or her cannot otherwise be obtained in this state, the director may receive service of process in any noncriminal proceeding against that person or his or her successor which grows out of the conduct and which is brought by the division under this chapter or any rule or order of the division. The process has the same force and validity as if personally served. Notice shall be given as provided in paragraph (a).

           (4) PENALTY GUIDELINES.-- The division shall, by rule, adopt penalty guidelines applicable to violations or to categories of violations of this chapter or related rules. The guidelines must specify a meaningful range of civil penalties for each such violation of statute and rule and must be based upon the harm caused by the violation, the repetition of the violation, and upon such other factors deemed relevant by the division, such as whether the violations were committed by a developer or owner controlled association, the size of the association, and other factors. The guidelines must designate the possible mitigating or aggravating circumstances that justify a departure from the range of penalties provided by the rules. It is the Legislature’s intent that minor violations be distinguished from those that endanger the health, safety, or welfare of the parcel owners or other persons and that such guidelines provide reasonable and meaningful notice to the public of likely penalties that may be imposed for the proscribed conduct. This subsection does not limit the ability of the division to informally dispose of administrative actions or complaints by stipulation, agreed settlement, or consent order. All amounts collected shall be deposited with the Chief Financial Officer to the credit of the Florida Condominiums, Homeowners’ Associations, Timeshares, and Mobile Homes Trust Fund. If a developer fails to pay the civil penalty and the amount owed to the association, the division shall issue an order directing that such developer cease and desist from further operation until such time as the civil penalty is paid or may pursue enforcement of the penalty through court order. If an association fails to pay the civil penalty, the division shall pursue enforcement through court order, and the order imposing the civil penalty or the cease and desist order is not effective until 20 days after the date of such order. Any action commenced by the division shall be brought in the county in which the division has its executive offices or in the county where the violation occurred.

Section 720.3023, Florida Statutes, is created to read:

720.3023 Florida Condominiums, Homeowners’ Associations, Timeshares, and Mobile Homes Trust Fund.—

All funds collected by the division and any amounts paid as fees, fines, or penalties or from costs awarded to the division by a court or administrative final order under this chapter shall be deposited in the State Treasury to the credit of the Division of Florida Condominiums, Homeowners’ Associations, Timeshares, and Mobile Homes Trust Fund created by s. 718.509.

Section 720.3024, Florida Statutes, is created to read:

 720.3024 Office of the Community Association Ombudsman.--

  (1) CREATION.-- There is created an Office of the Community Association Ombudsman, within the division.

       (a)The office shall be a bureau within the division as provided under s. 20.04(3).

       (b) The functions of the office shall be funded by the Florida Condominiums, Homeowners’ Associations, Timeshares, and Mobile Homes Trust Fund.

       (c) he office shall be located in Leon County on the premises of the division or, if suitable space cannot be provided there, at another place convenient to the division which enables the ombudsman to expeditiously carry out the duties and functions of his or her office. The office may establish branch offices elsewhere in the state upon the concurrence of the Governor and the availability of funding.

   (2) APPOINTMENT OF OMBUDSMAN.--

The office shall be headed by an ombudsman who shall be appointed by and serve at the pleasure of the Governor.

        (a) The ombudsman must be an attorney licensed in this state.

        (b) The ombudsman or any full-time employee of the office may not actively engage in any other business or profession; that directly or indirectly relates to or conflicts with his or her work in the ombudsman’s office serve as the representative of any political party, executive committee, or other governing body of a political party; serve as an executive, officer, or employee of a political party; receive remuneration for activities on behalf of any candidate for public office; or engage in soliciting votes or other activities on behalf of a candidate for public office. The ombudsman or any employee of the office may not become a candidate for election to public office unless he or she first resigns from his or her office or employment.

     (3) POWERS AND DUTIES.--

The ombudsman shall have all powers necessary to carry out the duties of the office, including authority to:

       (a) Access and use of all files and records of the division.

       (b) Employ professional and clerical staff as necessary for the efficient operation of the office.

       (c) Prepare and issue reports and recommendations to the Governor, the department, the division, the Advisory Council on Condominiums, the President of the Senate, and the Speaker of the House of Representatives on any matter or subject within the jurisdiction of the division. The ombudsman shall make such recommendations as he or she deems appropriate for legislation relative to division procedures, rules, jurisdiction, personnel, and functions.

        (d) Act as the liaison between the division, parcel owners, boards of directors, board members, community association managers, and other affected parties. The ombudsman shall develop policies and procedures to assist parcel owners, boards of directors, board members, community association managers, and other affected parties to understand their rights and responsibilities as set forth in this chapter and the homeowners’ association documents governing the respective association. The ombudsman shall coordinate and assist in the preparation and adoption of educational and reference material, and endeavor to coordinate with private or volunteer providers of these services, so that the availability of these resources is made known to the largest possible audience.

          (e) Monitor and review procedures and disputes concerning homeowners’ association elections or meetings, including, but not limited to, recommending that the division pursue enforcement action in any manner where there is reasonable cause to believe that election misconduct has occurred.

           (f) Make recommendations to the division for changes in rules and procedures for the filing, investigation, and resolution of complaints filed by parcel owners, associations, and managers.

           (g) Provide resources to assist members of boards of directors and officers of associations to carry out their powers and duties consistent with this chapter, division rules, and the homeowners’ associations documents governing the association.

            (h) Encourage and facilitate voluntary meetings with and between parcel owners, boards of directors, board members community association managers, and other affected parties if such meetings may assist in resolving a dispute within a community association before the dispute is submitted for a formal or administrative remedy. It is the intent of the Legislature that the ombudsman act as a neutral resource for both the rights and responsibilities of parcel owners, associations, and board members.

             (i) Assist with the resolution of disputes between parcel owners and the association or between parcel owners if the dispute is not within the jurisdiction of the division to resolve.

    (4) APPOINTMENT OF ELECTION MONITORS.-- Fifteen percent of the total voting interests in a homeowners’ association, or six parcel owners, whichever is greater, may petition the ombudsman to appoint an election monitor to attend the annual meeting of the members and conduct the election of the directors. The ombudsman shall appoint a division employee, a person or persons specializing in homeowners’ association election monitoring, or an attorney, licensed to practice in this state, as the election monitor. All costs associated with the election monitoring process shall be paid by the association. The division shall adopt by rule procedures for the appointment of election monitors and the scope and extent of the monitor’s role in the election process.

Section 720.3025, Florida Statutes, is created to read:

720.3025 Community Association Living Study Council; membership functions. --

(1) There is created the Community Association Living Study Council. The council shall consist of seven appointed members. Two members shall be appointed by the President of the Senate, two members shall be appointed by the Speaker of the House of Representatives, and three members shall be appointed by the Governor. One member that is appointed by the Governor may represent timeshare condominiums. The council shall be created as of October 1 every 5 years, commencing October 1, 2013, and shall exist for a 6-month term. The director of the division shall appoint an ex officio nonvoting member. The Legislature intends that the persons appointed represent a cross-section of persons interested in community association issues. The council shall be located within the division for administrative purposes. Members of the council shall serve without compensation but are entitled to receive per diem and travel expenses pursuant to s. 112.061 while on official business.

 (2) The functions of the council shall be to:

 (a) Receive, from the public, input regarding issues of concern with respect to community association living, including living in condominiums, cooperatives, and homeowners’ associations. The council shall make recommendations for changes in the law related to community association living. The issues that the council shall consider include, but are not limited to, the rights and responsibilities of the owners in relation to the rights and responsibilities of the association.

 (b) Review, evaluate, and advise the division concerning revisions and adoption of rules affecting condominiums, homeowners’ associations and cooperatives.

 (c) Recommend improvements, if needed, in the education programs offered by the division.

 (d) Review, evaluate, and advise the Legislature concerning revisions and improvements to the laws relating to condominiums, cooperatives, and homeowners’ associations.

    (3) The council may elect a chair and vice chair and such other officers as it may deem advisable. The council shall meet at the call of its chair, at the request of a majority of its membership, at the request of the division, or at such times as it may prescribe. A majority of the members of the council shall constitute a quorum. Council action may be taken by vote of a majority of the voting members who are present at a meeting where there is a quorum.

Section 720.3029, Florida Statutes, is created to read:

720.3029 Homeowners’ association fees.-- Effective January 1, 2015, each homeowners’ association that operates more than two parcels must pay to the division an annual fee of $4 for each residential parcel operated by the association. Beginning January 1, 2016, the division may increase the fee in a manner provided for changes in the cost of living under s. 401(a)(17) of the Internal Revenue Code.

   (1) If the fee is not paid by March 1, the association shall be assessed a penalty of 10 percent of the amount due and will not have standing to maintain or defend any action in the courts of this state until the amount due, plus any penalty, is paid.

   (2)Funds collected shall be deposited in the Florida Condominiums, Homeowners’ Association, Timeshares, and Mobile Homes Trust Fund. Funds shall be used by the division for, but not limited to, the review and approval of deed restrictions prior to being recorded at the county level by the developer or owner of the initial lots to be developed; education; enforcement; investigation; and prosecution of policies and procedures related to mandated properties.

   (3) The division shall furnish each association that pays fees under this section with a copy of this chapter, as amended, and related rules on an annual basis.

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Section 720.303, Florida Statutes, subparagraph (2)(c) is amended to read: 

FS 720.303(2)(c)

2. 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, increases in assessments, or amendments to governing documents 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 regardless of any notice requirements to the contrary contained in any governing document.

Section 720.305, Florida Statutes, subparagraph (2) is amended to read: 

FS 720.305 (2) The association, if authorized by its original governing documents to impose fines, may levy reasonable fines of up to $100 per violation against any member or any member’s tenant, guest, or invitee for the failure of the owner of the parcel or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. A fine may be levied for each day of a continuing violation, with a single notice and opportunity for hearing, except that the fine may not exceed $1,000 in the aggregate unless otherwise provided in the governing documents. A fine of less than $1,000 may not become a lien against a parcel. In any action to recover a fine, the prevailing party is entitled to reasonable attorney’s fees and costs from the nonprevailing party as determined by the court.

Section 720.306, Florida Statutes, is amended to read:

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 for 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 approved 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 is present 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 the bylaws or articles of incorporation of an association may be amended by the affirmative vote of two-thirds of the voting interests of the association, and the Declaration may be amended by the affirmative vote of parcel owners representing two-thirds of the voting interests of the affected parcels. Within 30 days after recording an amendment to the governing documents, the association shall provide copies of the amendment to the members.

      (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. The merger or consolidation of one or more associations under a plan of merger or consolidation under chapter 607 or chapter 617 is shall not be considered a material or adverse alteration of the proportionate voting interest appurtenant to a parcel.

  (d) The Legislature finds that the procurement of mortgagee consent to amendments that do not affect the rights or interests of mortgagees is an unreasonable and substantial logistical and financial burden on the parcel owners and that there is a compelling state interest in enabling the members of an association to approve amendments to the association’s governing documents through legal means. Accordingly, and notwithstanding any provision of this paragraph to the contrary:

 1. As to any mortgage recorded on or after July 1, 2013, any provision in the association’s governing documents that requires the consent or joinder of some or all mortgagees of parcels or any other portion of the association’s common areas to amend the association’s governing documents or for any other matter is enforceable only as to amendments to the association’s governing documents that adversely affect the priority of the mortgagee’s lien or the mortgagee’s rights to foreclose its lien or that otherwise materially affect the rights and interests of the mortgagees.

 2. As to mortgages recorded before July 1, 2013, any existing provisions in the association’s governing documents requiring mortgagee consent are enforceable.

 3. In securing consent or joinder, the association is entitled to rely upon the public records to identify the holders of outstanding mortgages. The association may use the address provided in the original recorded mortgage document, unless there is a different address for the holder of the mortgage in a recorded assignment or modification of the mortgage, which recorded assignment or modification must reference the official records book and page on which the original mortgage was recorded. Once the association has identified the recorded mortgages of record, the association shall, in writing, request of each parcel owner whose parcel is encumbered by a mortgage of record any information that the owner has in his or her possession regarding the name and address of the person to whom mortgage payments are currently being made. Notice shall be sent to such person if the address provided in the original recorded mortgage document is different from the name and address of the mortgagee or assignee of the mortgage as shown by the public record. The association is deemed to have complied with this requirement by making the written request of the parcel owners required under this subparagraph. Any notices required to be sent to the mortgagees under this subparagraph shall be sent to all available addresses provided to the association.

 4. Any notice to the mortgagees required under subparagraph 3. may be sent by a method that establishes proof of delivery, and any mortgagee who fails to respond within 60 days after the date of mailing is deemed to have consented to the amendment.

 5. For those amendments requiring mortgagee consent on or after July 1, 2013, in the event mortgagee consent is provided other than by properly recorded joinder, such consent shall be evidenced by affidavit of the association recorded in the public records of the county in which the declaration is recorded.

 6. Any amendment adopted without the required consent of a mortgagee is voidable only by a mortgagee who was entitled to notice and an opportunity to consent. An action to void an amendment is subject to the statute of limitations beginning 5 years after the date of discovery as to the amendments described in subparagraph 1. and 5 years after the date of recordation of the certificate of amendment for all other amendments. This subparagraph applies to all mortgages, regardless of the date of recordation of the mortgage.

(2) ANNUAL MEETING.--

The members association shall hold an annual 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. If the bylaws are silent as to the location, the annual meeting and all other membership meetings shall be held within 45 miles of the association property. 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 must 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 before 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 procedure for conspicuously posting and repeatedly broadcasting the notice and the agenda on a closed-circuit cable television system serving the association. If 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. The association may adopt written reasonable written rules governing the frequency, duration, and other manner of member and parcel owner statements, which are 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 s. 607.0707, 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.--

   (a) Members voting by limited proxy must use a form substantially conforming to a limited proxy form adopted by the division. Limited proxies must be used for:

     1. Votes taken to waive or reduce reserves in accordance with 720.303(6);

     2. Votes taken to waive the financial reporting requirements of s. 720.303(7);

     3. Votes taken to amend the declaration;

     4. Votes taken to amend the articles of incorporation or bylaws pursuant to this section; and

     5. Any other matter for which this chapter requires or permits a vote of the parcel owners.

   (b) General proxies may be used for other matters for which limited proxies are not required and may also be used in voting for nonsubstantive changes to items for which a limited proxy is required and given.

   (c) Limited proxies and general proxies may be used to establish a quorum.

   (d) Voting interests or consent rights allocated to a parcel owned by the association may not be exercised or considered for any purpose, whether for a quorum, an election, or otherwise.

   (e) Any proxy given is effective only for the specific meeting for which originally given and any lawfully adjourned meetings thereof. In no event is a proxy valid for longer than 90 days after the date of the first meeting for which it was given. Every proxy is revocable at any time at the pleasure of the parcel owner executing it.

    (f) This subsection does not limit the use of general proxies, require the use of limited proxies for any agenda item or election at any meeting of a timeshare condominium association, or prohibit parcel owners from voting in person at parcel owner meetings. 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

(a) 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.

(b) If the governing documents permit voting by secret ballot by members who are not in attendance at a meeting of the members for the election of directors, such ballots must be placed in an inner envelope with no identifying markings and mailed or delivered to the association in an outer envelope bearing identifying information reflecting the name of the member, the lot or parcel for which the vote is being cast, and the signature of the lot or parcel owner casting that ballot. If the eligibility of the member to vote is confirmed and no other ballot has been submitted for that lot or parcel, the inner envelope shall be removed from the outer envelope bearing the identification information, placed with the ballots which were personally cast, and opened when the ballots are counted. If more than one ballot is submitted for a lot or parcel, the ballots for that lot or parcel shall be disqualified. Any vote by ballot received after the closing of the balloting may not be considered.

(9) ELECTIONS AND BOARD VACANCIES.--

   (a) Unless the governing documents provide otherwise, a vacancy on the board of directors caused by the expiration of a director’s term shall be filled by electing a new board member. This section applies to any mandatory association that governs 10 parcels or more. The election must occur on the date of the annual meeting.

   1. An election is not required unless more candidates file notices of intent to run or are nominated than board vacancies exist. 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.

   2. If the governing documents permit staggered terms of up to 2 years, and upon approval of a majority of the total voting interests, the association board members may serve 2-year staggered terms. 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 governing documents.

   3. Unless the governing documents 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.

   4. For purposes of this paragraph, the term “candidate” means an eligible person who has timely submitted the written notice, as described in subparagraph (c)2., of his or her intention to become a candidate.

   (b) Any parcel owner desiring to be a candidate for board membership must be eligible to serve on the board of directors at the time of the deadline for submitting a notice of intent to run as provided in subparagraph (c)2. in order to have his or her name listed as a proper candidate on the ballot. The following parcel owners are not eligible to be a candidate or serve on the board of directors:

   1. A parcel owner who is delinquent in the payment of any fee, fine, or special or regular assessment as provided in paragraph (d).

   2. In a homeowners’ association of more than 10 parcels, co-owners of a parcel may not serve as members of the board of directors at the same time unless they own more than one parcel or unless there are not enough eligible candidates to fill the vacancies on the board at the time of the vacancy.

   (c) The members of the board shall be elected by secret ballot using a 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.

  1. At least 60 days before a scheduled election, the association shall mail, deliver, or electronically transmit, by separate association mailing or by inclusion in another association mailing, delivery, or transmission, including regularly published newsletters, to each parcel owner entitled to a vote, a first notice of the date of the election.

   2. Any parcel 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 the scheduled election.

   3. Together with the notice and agenda required under subsection (5), the association shall mail, deliver, or electronically transmit a second notice of the election to all parcel owners entitled to vote, which includes 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.

   4. 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 parcel owner may not permit any other person to vote his or her ballot, and any ballots improperly cast are invalid. A parcel owner who violates this provision may be fined by the association in accordance with s. 720.305. A parcel owner who needs assistance in casting the ballot for the reasons stated in s. 101.051 may obtain such assistance.

   5. The division shall by rule establish voting procedures consistent with this paragraph, including rules establishing procedures for giving notice by electronic transmission and rules providing for the secrecy of ballots.

(b)  (d) A person who is delinquent in the payment of any fee, fine, or other monetary obligation to the association for more than 90 days is not eligible for board membership. A person who has been convicted of any felony in this state or in a United States District or Territorial Court, or 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 on which such person seeks election to the board. The validity of any action by the board is not affected if it is later determined that a member of the board is ineligible for board membership.
(c)  (e) Any election dispute between a member and an association must be submitted to mandatory binding arbitration with the division. Such proceedings must be conducted in the manner provided by s. 718.1255 and the procedural rules adopted by the division. Any challenge to the election process must be commenced within 60 days after the election results are announced.

   1. Unless otherwise provided in the governing documents, any vacancy occurring on the board before the expiration of a term may be filled by an 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 the requirements of the governing documents.

   2. Unless otherwise provided in the governing documents, a board member appointed or elected under this section is appointed for the unexpired term of the seat being filled. Filling vacancies created by recall is governed by s. 720.303(10) and rules adopted by the division.      

(a)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 are 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; provided, however, that if the election process allows candidates to be nominated in advance of the meeting, the association is not required to allow nominations at the meeting. An election is not required unless more candidates are nominated than vacancies exist. 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 challenge to the election process must be commenced within 60 days after the election results are announced.

(b)A person who is delinquent in the payment of any fee, fine, or other monetary obligation to the association for more than 90 days is not eligible for board membership. A person who has been convicted of any felony in this state or in a United States District or Territorial Court, or 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 on which such person seeks election to the board. The validity of any action by the board is not affected if it is later determined that a member of the board is ineligible for board membership.

(c)Any election dispute between a member and an association must be submitted to mandatory binding arbitration with the division. Such proceedings must be conducted in the manner provided by s. 718.1255 and the procedural rules adopted by the division. Unless otherwise provided in the bylaws, any vacancy occurring on the board before the expiration of a term may be filled by an 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 the requirements of the governing documents. Unless otherwise provided in the bylaws, a board member appointed or elected under this section is appointed for the unexpired term of the seat being filled. Filling vacancies created by recall is governed by s. 720.303(10) and 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.

Section 720.307, Florida Statutes, subparagraph (5) is amended to read: 

FS 720.307(5)

(5) 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.