Florida Senate - 2021 SB 1998



By Senator Pizzo





38-00246-21 20211998__
1 A bill to be entitled
2 An act relating to condominium associations; amending
3 s. 194.011, F.S.; providing that certain associations
4 may continue to represent, prosecute, or defend unit
5 owners in certain proceedings; providing
6 applicability; amending s. 194.181, F.S.; revising the
7 parties considered to be the defendant in a tax suit;
8 requiring condominium and cooperative associations to
9 provide unit owners with certain notice and
10 information under certain circumstances; providing
11 requirements for such notice; specifying that a unit
12 owner who does not respond to the notice will be
13 represented in the response or answer filed by the
14 association; amending s. 718.111, F.S.; revising
15 criminal penalties relating to the acceptance of
16 things or services of value or kickbacks; authorizing
17 a condominium association to take certain actions
18 relating to ad valorem taxes assessed on units for
19 commonly used facilities or common elements; providing
20 applicability; revising the documents required to be
21 included with accounting records; requiring an
22 association to maintain official records in a
23 specified manner; revising requirements for the
24 creation of a rebuttable presumption relating to the
25 provision of records; authorizing an association to
26 direct certain persons to the association’s website to
27 fulfill certain obligations relating to the inspection
28 of records; requiring an association to provide an
29 itemized list and a sworn affidavit to persons
30 requesting to inspect records; requiring the
31 association to maintain the itemized list for a
32 specified period of time; creating a rebuttable
33 presumption for an association that provides such
34 itemized list and sworn affidavit; providing criminal
35 penalties for certain violations relating to official
36 association records; defining the term “repeatedly”;
37 requiring certain associations to post copies of
38 certain documents on their websites by a specified
39 date; revising criminal penalties relating to the use
40 of association debit cards; defining the term “lawful
41 obligation of the association”; creating s. 718.1285,
42 F.S.; providing criminal penalties for fraudulent
43 voting activities related to association elections;
44 amending s. 718.501, F.S.; revising the jurisdiction
45 of the Division of Florida Condominiums, Timeshares,
46 and Mobile Homes of the Department of Business and
47 Professional Regulation with regard to investigating
48 complaints; defining the term “financial issue”;
49 providing an effective date.
50
51 Be It Enacted by the Legislature of the State of Florida:
52
53 Section 1. Paragraph (e) of subsection (3) of section
54 194.011, Florida Statutes, is amended to read:
55 194.011 Assessment notice; objections to assessments.—
56 (3) A petition to the value adjustment board must be in
57 substantially the form prescribed by the department.
58 Notwithstanding s. 195.022, a county officer may not refuse to
59 accept a form provided by the department for this purpose if the
60 taxpayer chooses to use it. A petition to the value adjustment
61 board must be signed by the taxpayer or be accompanied at the
62 time of filing by the taxpayer’s written authorization or power
63 of attorney, unless the person filing the petition is listed in
64 s. 194.034(1)(a). A person listed in s. 194.034(1)(a) may file a
65 petition with a value adjustment board without the taxpayer’s
66 signature or written authorization by certifying under penalty
67 of perjury that he or she has authorization to file the petition
68 on behalf of the taxpayer. If a taxpayer notifies the value
69 adjustment board that a petition has been filed for the
70 taxpayer’s property without his or her consent, the value
71 adjustment board may require the person filing the petition to
72 provide written authorization from the taxpayer authorizing the
73 person to proceed with the appeal before a hearing is held. If
74 the value adjustment board finds that a person listed in s.
75 194.034(1)(a) willfully and knowingly filed a petition that was
76 not authorized by the taxpayer, the value adjustment board shall
77 require such person to provide the taxpayer’s written
78 authorization for representation to the value adjustment board
79 clerk before any petition filed by that person is heard, for 1
80 year after imposition of such requirement by the value
81 adjustment board. A power of attorney or written authorization
82 is valid for 1 assessment year, and a new power of attorney or
83 written authorization by the taxpayer is required for each
84 subsequent assessment year. A petition shall also describe the
85 property by parcel number and shall be filed as follows:
86 (e)1. A condominium association as described in chapter
87 718, a cooperative association as described in chapter 719, or a
88 any homeowners’ association as defined in s. 723.075, with
89 approval of its board of administration or directors, may file
90 with the value adjustment board a single joint petition on
91 behalf of any association members who own units or parcels of
92 property which the property appraiser determines are
93 substantially similar with respect to location, proximity to
94 amenities, number of rooms, living area, and condition. The
95 condominium association, cooperative association, or homeowners’
96 association as defined in s. 723.075 shall provide the unit or
97 parcel owners with notice of its intent to petition the value
98 adjustment board and shall provide at least 20 days for a unit
99 or parcel owner to elect, in writing, that his or her unit or
100 parcel not be included in the petition.
101 2. A condominium association as described in chapter 718,
102 or a cooperative association as described in chapter 719, which
103 has filed a single joint petition under this subsection may
104 continue to represent, prosecute, or defend the unit owners
105 through any related subsequent proceeding in any tribunal,
106 including judicial review under part II of this chapter and any
107 appeals. This subparagraph is intended to clarify existing law
108 and applies to cases pending on October 1, 2021, or filed
109 thereafter.
110 Section 2. Subsection (2) of section 194.181, Florida
111 Statutes, is amended to read:
112 194.181 Parties to a tax suit.—
113 (2)(a) In any case brought by a the taxpayer or a
114 condominium or cooperative association, as described in chapters
115 718 and 719, respectively, on behalf of some or all unit owners
116 to contest contesting the assessment of any property, the county
117 property appraiser is the shall be party defendant.
118 (b) Except as provided in paragraph (c), in any case
119 brought by the property appraiser under pursuant to s.
120 194.036(1)(a) or (b), the taxpayer is the shall be party
121 defendant.
122 (c) In any case brought by the property appraiser under s.
123 194.036(1)(a) or (b) concerning a value adjustment board
124 decision on a single joint petition filed by a condominium or
125 cooperative association under s. 194.011(3), the association and
126 all unit owners included in the single joint petition are the
127 party defendants. In such cases:
128 1. The condominium or cooperative association must provide
129 unit owners with notice of its intent to respond to or answer
130 the property appraiser’s complaint and advise them that they may
131 elect to:
132 a. Retain their own counsel to defend the appeal;
133 b. Not defend the appeal; or
134 c. Be represented together with other unit owners in the
135 response or answer filed by the association.
136 2. The notice required in subparagraph 1. must be mailed,
137 delivered, or electronically transmitted to unit owners and
138 posted conspicuously on the condominium or cooperative property
139 in the same manner as is required for notice of board meetings
140 under s. 718.112(2) or s. 719.106(1), as applicable. Any unit
141 owner who does not respond to the association’s notice will be
142 represented in the response or answer filed by the association.
143 (d) In any case brought by the property appraiser under
144 pursuant to s. 194.036(1)(c), the value adjustment board is the
145 shall be party defendant.
146 Section 3. Paragraphs (a) and (d) of subsection (1),
147 subsection (3), paragraphs (a), (b), (c), and (g) of subsection
148 (12), and paragraph (b) of subsection (15) of section 718.111,
149 Florida Statutes, are amended to read:
150 718.111 The association.—
151 (1) CORPORATE ENTITY.—
152 (a) The operation of the condominium shall be by the
153 association, which must be a Florida corporation for profit or a
154 Florida corporation not for profit. However, any association
155 which was in existence on January 1, 1977, need not be
156 incorporated. The owners of units shall be shareholders or
157 members of the association. The officers and directors of the
158 association have a fiduciary relationship to the unit owners. It
159 is the intent of the Legislature that nothing in this paragraph
160 shall be construed as providing for or removing a requirement of
161 a fiduciary relationship between any manager employed by the
162 association and the unit owners. An officer, director, or
163 manager may not solicit, offer to accept, or accept any thing or
164 service of value or kickback for which consideration has not
165 been provided for his or her own benefit or that of his or her
166 immediate family, from any person providing or proposing to
167 provide goods or services to the association. Any such officer,
168 director, or manager who knowingly so solicits, offers to
169 accept, or accepts any thing or service of value or kickback
170 commits a felony of the third degree, punishable as provided in
171 s. 775.082, s. 775.083, or s. 775.084, and is subject to a civil
172 penalty pursuant to s. 718.501(1)(d) and, if applicable, a
173 criminal penalty as provided in paragraph (d). However, this
174 paragraph does not prohibit an officer, director, or manager
175 from accepting services or items received in connection with
176 trade fairs or education programs. An association may operate
177 more than one condominium.
178 (d) As required by s. 617.0830, an officer, director, or
179 agent shall discharge his or her duties in good faith, with the
180 care an ordinarily prudent person in a like position would
181 exercise under similar circumstances, and in a manner he or she
182 reasonably believes to be in the interests of the association.
183 An officer, director, or agent shall be liable for monetary
184 damages as provided in s. 617.0834 if such officer, director, or
185 agent breached or failed to perform his or her duties and the
186 breach of, or failure to perform, his or her duties constitutes
187 a violation of criminal law as provided in s. 617.0834;
188 constitutes a transaction from which the officer or director
189 derived an improper personal benefit, either directly or
190 indirectly; or constitutes recklessness or an act or omission
191 that was in bad faith, with malicious purpose, or in a manner
192 exhibiting wanton and willful disregard of human rights, safety,
193 or property. Forgery of a ballot envelope or voting certificate
194 used in a condominium association election is punishable as
195 provided in s. 831.01, the theft or embezzlement of funds of a
196 condominium association is punishable as provided in s. 812.014,
197 and the destruction of or the refusal to allow inspection or
198 copying of an official record of a condominium association that
199 is accessible to unit owners within the time periods required by
200 general law in furtherance of any crime is punishable as
201 tampering with physical evidence as provided in s. 918.13 or as
202 obstruction of justice as provided in chapter 843. An officer or
203 director charged by information or indictment with a crime
204 referenced in this paragraph must be removed from office, and
205 the vacancy shall be filled as provided in s. 718.112(2)(d)2.
206 until the end of the officer’s or director’s period of
207 suspension or the end of his or her term of office, whichever
208 occurs first. If a criminal charge is pending against the
209 officer or director, he or she may not be appointed or elected
210 to a position as an officer or a director of any association and
211 may not have access to the official records of any association,
212 except pursuant to a court order. However, if the charges are
213 resolved without a finding of guilt, the officer or director
214 must be reinstated for the remainder of his or her term of
215 office, if any.
216 (3) POWER TO MANAGE CONDOMINIUM PROPERTY AND TO CONTRACT,
217 SUE, AND BE SUED; CONFLICT OF INTEREST.—
218 (a) The association may contract, sue, or be sued with
219 respect to the exercise or nonexercise of its powers. For these
220 purposes, the powers of the association include, but are not
221 limited to, the maintenance, management, and operation of the
222 condominium property.
223 (b) After control of the association is obtained by unit
224 owners other than the developer, the association may:
225 1. Institute, maintain, settle, or appeal actions or
226 hearings in its name on behalf of all unit owners concerning
227 matters of common interest to most or all unit owners,
228 including, but not limited to, the common elements; the roof and
229 structural components of a building or other improvements;
230 mechanical, electrical, and plumbing elements serving an
231 improvement or a building; and representations of the developer
232 pertaining to any existing or proposed commonly used facilities;
233 2. Protest and protesting ad valorem taxes on commonly used
234 facilities and on units; and may
235 3. Defend actions pertaining to ad valorem taxation of
236 commonly used facilities or units or pertaining to in eminent
237 domain; or
238 4. Bring inverse condemnation actions.
239 (c) If the association has the authority to maintain a
240 class action, the association may be joined in an action as
241 representative of that class with reference to litigation and
242 disputes involving the matters for which the association could
243 bring a class action.
244 (d) The association, in its own name or on behalf of some
245 or all unit owners, may institute, file, protest, maintain, or
246 defend any administrative challenge, lawsuit, appeal, or other
247 challenge to ad valorem taxes assessed on units for commonly
248 used facilities or common elements. The affected association
249 members are not necessary or indispensable parties to such
250 actions. This paragraph is intended to clarify existing law and
251 applies to cases pending on October 1, 2021, or filed
252 thereafter.
253 (e) Nothing herein limits any statutory or common-law right
254 of any individual unit owner or class of unit owners to bring
255 any action without participation by the association which may
256 otherwise be available.
257 (f) An association may not hire an attorney who represents
258 the management company of the association.
259 (12) OFFICIAL RECORDS.—
260 (a) From the inception of the association, the association
261 shall maintain each of the following items, if applicable, which
262 constitutes the official records of the association:
263 1. A copy of the plans, permits, warranties, and other
264 items provided by the developer pursuant to s. 718.301(4).
265 2. A photocopy of the recorded declaration of condominium
266 of each condominium operated by the association and each
267 amendment to each declaration.
268 3. A photocopy of the recorded bylaws of the association
269 and each amendment to the bylaws.
270 4. A certified copy of the articles of incorporation of the
271 association, or other documents creating the association, and
272 each amendment thereto.
273 5. A copy of the current rules of the association.
274 6. A book or books that contain the minutes of all meetings
275 of the association, the board of administration, and the unit
276 owners.
277 7. A current roster of all unit owners and their mailing
278 addresses, unit identifications, voting certifications, and, if
279 known, telephone numbers. The association shall also maintain
280 the e-ma