718.501 Powers
and duties of Division of Florida Land Sales, Condominiums, and Mobile
Homes.
718.5011
Ombudsman; appointment; administration.
718.5012
Ombudsman; powers and duties.
718.5014
Ombudsman location.
718.50152
Offices. 718.50153
Payment of per diem, mileage, and other expenses to division employees. 718.50154
Seal and authentication of records. 718.50155
Service of process.
718.502 Filing
prior to sale or lease.
718.503 Developer
disclosure prior to sale; nondeveloper unit owner disclosure prior to sale;
voidability.
718.504 Prospectus
or offering circular.
718.505 Good
faith effort to comply.
718.506 Publication
of false and misleading information.
718.507 Zoning
and building laws, ordinances, and regulations.
718.508 Regulation
by Division of Hotels and Restaurants.
718.509
Division of Florida Condominiums, Timeshares, and Mobile Homes Trust Fund.
718.501 Authority,
responsibility, and duties of Division of Florida Condominiums, Timeshares, and
Mobile Homes.--
(1) The division may
enforce and ensure compliance with this chapter
and rules relating to the development,
construction, sale, lease, ownership, operation,
and management of residential condominium units.
In performing its duties, the division has
complete jurisdiction to investigate complaints
and enforce compliance with respect to
associations that are still under developer
control or the control of a bulk assignee or
bulk buyer pursuant to part VII of this chapter
and complaints against developers, bulk
assignees, or bulk buyers involving improper
turnover or failure to turnover, pursuant to s.
718.301. However, after turnover has occurred,
the division has jurisdiction to investigate
complaints related only to financial issues,
elections, and the maintenance of and unit owner
access to association records under s.
718.111(12).
(a)1. The division may make necessary public or
private investigations within or outside this
state to determine whether any person has
violated this chapter or any rule or order
hereunder, to aid in the enforcement of this
chapter, or to aid in the adoption of rules or
forms.
2. The division may submit any official written
report, worksheet, or other related paper, or a
duly certified copy thereof, compiled, prepared,
drafted, or otherwise made by and duly
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.
(b) The division may require or permit any
person to file a statement in writing, under
oath or otherwise, as the division determines,
as to the facts and circumstances concerning a
matter to be investigated.
(c) For the purpose of any investigation under
this chapter, the division director or any
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 which is relevant to the 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.
(d) Notwithstanding any remedies available to
unit 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, bulk assignee, bulk buyer,
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, bulk assignee, bulk buyer,
association, developer-designated officer, or
developer-designated member of the board of
administration, developer-designated assignees
or agents, bulk assignee-designated assignees or
agents, bulk buyer-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 in the judgment of
the division carry out the purposes of this
chapter. If the division finds that a developer,
bulk assignee, bulk buyer, 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 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, bulk assignee, or bulk buyer
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
thereof, whichever is later, the division must
bring an action in circuit or county court on
behalf of any association, class of unit 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
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 the order and to remedy any
breach thereof. 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 under
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 appointed under subparagraph 4. 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, bulk assignee, or bulk
buyer, 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 this
chapter, an 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, a rule adopted under this
chapter, or a final order of the division and
that the officer or board member refused to
comply with the requirements of this chapter, a
rule adopted under this chapter, or a final
order of the division. The division, before
initiating formal agency action under chapter
120, must afford the officer or board member an
opportunity to voluntarily comply, and an
officer or board member who complies within 10
days is not subject to a civil penalty. A
penalty may be imposed on the basis of each day
of continuing violation, but the penalty for any
offense may not exceed $5,000. The division
shall adopt, by rule, penalty guidelines
applicable to possible violations or to
categories of violations of this chapter or
rules adopted by the division. The guidelines
must specify a meaningful range of civil
penalties for each such violation of the statute
and rules 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. For example, the
division may consider whether the violations
were committed by a developer, bulk assignee, or
bulk buyer, 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 legislative
intent that minor violations be distinguished
from those which endanger the health, safety, or
welfare of the condominium residents or other
persons and that such guidelines provide
reasonable and meaningful notice to the public
of likely penalties that may be imposed for
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 Division of Florida Condominiums,
Timeshares, and Mobile Homes Trust Fund. If a
developer, bulk assignee, or bulk buyer fails to
pay the civil penalty and the amount deemed to
be owed to the association, the division shall
issue an order directing that such developer,
bulk assignee, or bulk buyer cease and desist
from further operation until such time as the
civil penalty is paid or may pursue enforcement
of the penalty in a court of competent
jurisdiction. If an association fails to pay the
civil penalty, the division shall pursue
enforcement in a court of competent
jurisdiction, 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.
7. If a unit owner presents the division with
proof that the unit owner has requested access
to official records in writing by certified
mail, and that after 10 days the unit 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. 718.112.
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 paragraph (r). The civil penalty
shall be at least $500 but no more than $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) The division may prepare and disseminate a
prospectus and other information to assist
prospective owners, purchasers, lessees, and
developers of residential condominiums in
assessing the rights, privileges, and duties
pertaining thereto.
(f) The division may adopt rules to administer
and enforce this chapter.
(g) The division shall establish procedures for
providing notice to an association and the
developer, bulk assignee, or bulk buyer during
the period in which the developer, bulk
assignee, or bulk buyer controls the association
if the division is considering the issuance of a
declaratory statement with respect to the
declaration of condominium or any related
document governing such condominium community.
(h) The division shall furnish each association
that pays the fees required by paragraph (2)(a)
a copy of this chapter, as amended, and the
rules adopted thereto on an annual basis.
(i) The division shall annually provide each
association with a summary of declaratory
statements and formal legal opinions relating to
the operations of condominiums which were
rendered by the division during the previous
year.
(j) The division shall provide training and
educational programs for condominium association
board members and unit owners. The training may,
in the division’s discretion, 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 for board members and unit
owners offered by providers and shall maintain a
current list of approved programs and providers
and make such list available to board members
and unit owners in a reasonable and
cost-effective manner.
(k) The division shall maintain a toll-free
telephone number accessible to condominium unit
owners.
(l) The division shall develop a program to
certify both volunteer and paid mediators to
provide mediation of condominium disputes. The
division shall provide, upon request, a list of
such mediators to any association, unit owner,
or other participant in alternative dispute
resolution proceedings under s. 718.1255
requesting a copy of the list. The division
shall include on the list of volunteer mediators
only the names of persons who have received at
least 20 hours of training in mediation
techniques or who have mediated at least 20
disputes. 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 adopt, by rule, additional factors
for the certification of paid mediators, which
must be related to experience, education, or
background. Any person initially certified as a
paid mediator by the division must, in order to
continue to be certified, comply with the
factors or requirements adopted by rule.
(m) 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 receipt of a complaint, the division
shall acknowledge the complaint in writing and
notify the complainant whether the complaint is
within the jurisdiction of the division and
whether additional information is needed by the
division from the complainant. The division
shall conduct its investigation and, within 90
days after receipt of the original complaint or
of 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 a rule has occurred. If an
investigation is not completed within the time
limits established in this paragraph, the
division shall, on a monthly basis, notify the
complainant in writing of the status of the
investigation. When reporting its action to the
complainant, the division shall inform the
complainant of any right to a hearing under ss.
120.569 and 120.57. The division may adopt rules
regarding the submission of a complaint against
an association.
(n) Condominium association directors, officers,
and employees; condominium developers; bulk
assignees, bulk buyers, and community
association managers; and community association
management firms have an ongoing duty to
reasonably cooperate with the division in any
investigation under this section. The division
shall refer to local law enforcement authorities
any person whom the division believes has
altered, destroyed, concealed, or removed any
record, document, or thing required to be kept
or maintained by this chapter with the purpose
to impair its verity or availability in the
department’s investigation.
(o) The division may:
1. Contract with agencies in this state or other
jurisdictions to perform investigative
functions; or
2. Accept grants-in-aid from any source.
(p) 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.
(q) The division shall consider notice to a
developer, bulk assignee, or bulk buyer to be
complete when it is delivered to the address of
the developer, bulk assignee, or bulk buyer
currently on file with the division.
(r) 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.
(s) The division shall submit to the Governor,
the President of the Senate, the Speaker of the
House of Representatives, and the chairs of the
legislative appropriations committees an annual
report that includes, but need not be limited
to, the number of training programs provided for
condominium association board members and unit
owners, the number of complaints received by
type, the number and percent of complaints
acknowledged in writing within 30 days and the
number and percent of investigations acted upon
within 90 days in accordance with paragraph (m),
and the number of investigations exceeding the
90-day requirement. 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.
(2)(a) Each condominium association which
operates more than two units shall pay to the
division an annual fee in the amount of $4 for
each residential unit in condominiums operated
by the association. If the fee is not paid by
March 1, the association shall be assessed a
penalty of 10 percent of the amount due, and the
association 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.
(b) All fees shall be deposited in the Division
of Florida Condominiums, Timeshares, and Mobile
Homes Trust Fund as provided by law.
History.—s.
1, ch. 76-222; s. 1, ch. 77-174; s. 2, ch.
77-221; s. 4, ch. 78-323; ss. 4, 12, ch. 78-340;
s. 32, ch. 79-4; s. 15, ch. 79-314; s. 1, ch.
81-28; ss. 1, 2, 3, ch. 81-54; s. 4, ch. 81-172;
s. 6, ch. 81-185; s. 477, ch. 81-259; ss. 1, 4,
ch. 82-46; s. 2, ch. 82-113; ss. 5, 7, ch.
82-199; s. 154, ch. 83-216; s. 16, ch. 84-368;
s. 5, ch. 85-60; s. 8, ch. 86-175; s. 18, ch.
87-102; s. 16, ch. 91-103; s. 5, ch. 91-426; s.
12, ch. 92-49; s. 233, ch. 94-218; s. 299, ch.
96-410; s. 1774, ch. 97-102; s. 3, ch. 97-301;
s. 221, ch. 98-200; s. 62, ch. 2000-302; s.
1891, ch. 2003-261; s. 21, ch. 2008-28; s. 4, ch.
2008-134; s. 48, ch. 2008-240; s. 90, ch.
2009-21; s. 17, ch. 2010-174; s. 22, ch.
2021-135.
718.5011 Ombudsman;
appointment; administration.--
(1) There is created an Office of the Condominium Ombudsman, to be located for administrative purposes within the Division of Florida Condominiums, Timeshares, and Mobile Homes. The functions of the office shall be funded by the Division of Florida Condominiums, Timeshares, and Mobile Homes Trust Fund. The ombudsman shall be a bureau chief of the division, and the office shall be set within the division in the same manner as any other bureau is staffed and funded.
(2) The Governor shall appoint the ombudsman. The ombudsman must be an attorney admitted to practice before the Florida Supreme Court and shall serve at the pleasure of the Governor. A vacancy in the office shall be filled in the same manner as the original appointment. An officer or full-time employee of the ombudsman’s 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 his or her office may not become a candidate for election to public office unless he or she first resigns from his or her office or employment.
History.—s. 6, ch. 2004-345; s. 49, ch. 2008-240; s. 9,
ch. 2013-188.
718.5012 Ombudsman; powers
and duties.--
The ombudsman shall have the powers that are
necessary to carry out the duties of his or her
office, including the following specific powers:
(1) To
have access to and use of all files and records
of the division.
(2) To
employ professional and clerical staff as
necessary for the efficient operation of the
office.
(3) To
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 recommendations he or she deems
appropriate for legislation relative to division
procedures, rules, jurisdiction, personnel, and
functions.
(4) To
act as liaison between the division, unit
owners, boards of directors, board members,
community association managers, and other
affected parties. The ombudsman shall develop
policies and procedures to assist unit 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 condominium
documents governing their respective
association. The ombudsman shall coordinate and
assist in the preparation and adoption of
educational and reference material, and shall
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.
(5) To
monitor and review procedures and disputes
concerning condominium 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
and reviewing secret ballots cast at a vote of
the association.
(6) To
make recommendations to the division for changes
in rules and procedures for the filing,
investigation, and resolution of complaints
filed by unit owners, associations, and
managers.
(7) To
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 condominium
documents governing the association.
(8) To
encourage and facilitate voluntary meetings with
and between unit owners, boards of directors,
board members, community association managers,
and other affected parties when the meetings may
assist in resolving a dispute within a community
association before a person submits a dispute
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 unit owners, associations,
and board members.
(9) To
assist with the resolution of disputes between
unit owners and the association or between unit
owners when the dispute is not within the
jurisdiction of the division to resolve.
(10) Fifteen
percent of the total voting interests in a
condominium association, or six unit owners,
whichever is greater, may petition the ombudsman
to appoint an election monitor to attend the
annual meeting of the unit owners and conduct
the election of directors. The ombudsman shall
appoint a division employee, a person or persons
specializing in condominium 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 a rule establishing procedures for
the appointment of election monitors and the
scope and extent of the monitor’s role in the
election process.
History.—ss.
7, 36, ch. 2004-345; s. 22, ch. 2008-28; s. 8,
ch. 2017-188.
718.5014 Ombudsman
location.--
The ombudsman shall maintain his or her principal
office at a place convenient to the offices of the division which will enable
the ombudsman to expeditiously carry out the duties and functions of his or her
office. The ombudsman may establish branch offices elsewhere in the state upon
the concurrence of the Governor.
History.—s. 8, ch. 2004-345; s. 14, ch. 2021-99; s.
23, ch. 2021-135.
718.50152
Offices.--
(1) The executive offices of the
division shall be established and maintained in Tallahassee.
(2) The division may establish and
maintain branch offices.
History.--s. 6, ch. 63-129; s. 5, ch. 67-229; s. 2, ch. 71-98; s. 3,
ch. 76-168; ss. 1, 7, ch. 76-262; s. 1, ch. 77-457; ss. 5, 30, 32, ch. 79-347;
ss. 2, 3, ch. 81-318; ss. 33, 34, ch. 88-90; s. 4, ch. 91-429; s. 34, ch.
2008-240.
Note.--Former s. 478.061; s. 498.009.
718.50153
Payment of per diem, mileage, and other expenses to division employees.--
The amount of per diem and mileage and expense
money paid to employees shall be as provided in s. 112.061, except that the
division shall establish by rule the standards for reimbursement of actual
verified expenses incurred in connection with an onsite review or investigation.
History.--s. 8, ch. 63-129; s. 7, ch. 67-229; s. 2, ch. 71-98; s. 3,
ch. 76-168; s. 1, ch. 77-457; ss. 6, 30, 32, ch. 79-347; ss. 2, 3, ch. 81-318;
ss. 5, 33, 34, ch. 88-90; s. 4, ch. 91-429; s. 1, ch. 93-190; s. 3, ch. 97-192;
s. 35, ch. 2008-240.
Note.--Former
s. 478.081; s. 498.011.
718.50154 Seal
and authentication of records.--
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, when
authenticated by the seal, shall be prima facie evidence of the records in all
the courts of this state.
History.--s. 9, ch. 63-129; s. 8, ch. 67-229; s. 2, ch. 71-98; s. 3,
ch. 76-168; s. 1, ch. 77-457; ss. 7, 30, 32, ch. 79-347; ss. 2, 3, ch. 81-318;
ss. 6, 33, 34, ch. 88-90; s. 4, ch. 91-429; s. 36, ch. 2008-240.
Note.--Former
s. 478.091; s. 498.013.
718.50155
Service of process.--
(1) In addition to the methods of
service provided for in the Florida Rules of Civil Procedure and the Florida
Statutes, service may be made and shall be binding upon the defendant or
respondent if:
(a) The division, which is 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
(b) The division files an affidavit of
compliance with this section on or before the return date of the process or
within the time set by the court.
(2) 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 shall be authorized to 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 shall have
the same force and validity as if personally served. Notice shall be given as
provided in subsection (1).
History.--s. 26, ch. 67-229; s. 2, ch. 71-98; s. 3, ch. 76-168; s. 1,
ch. 77-457; ss. 26, 30, 32, ch. 79-347; ss. 2, 3, ch. 81-318; ss. 26, 33, 34, ch.
88-90; s. 4, ch. 91-429; s. 581, ch. 97-103; s. 37, ch. 2008-240.
Note.--Former s. 478.29; s. 498.057.
718.502 Filing prior to
sale or lease.--
(1)(a) A developer of a residential
condominium or mixed-use condominium shall file with the division one copy of
each of the documents and items required to be furnished to a buyer or lessee by
ss. 718.503 and 718.504, if applicable. Until the developer has so filed, a
contract for sale of a unit or lease of a unit for more than 5 years shall be
voidable by the purchaser or lessee prior to the closing of his or her purchase
or lease of a unit.
(b) A developer may not close on any
contract for sale or contract for a lease period of more than 5 years until the
developer prepares and files with the division documents complying with the
requirements of this chapter and the rules adopted by the division and until the
division notifies the developer that the filing is proper and the developer
prepares and delivers all documents required by s. 718.503(1)(b) to the
prospective buyer.
(c) The division by rule may develop
filing, review, and examination requirements and relevant timetables to ensure
compliance with the notice and disclosure provisions of this section.
(2)(a) Prior to filing as required by
subsection (1), and prior to acquiring an ownership, leasehold, or contractual
interest in the land upon which the condominium is to be developed, a developer
shall not offer a contract for purchase of a unit or lease of a unit for more
than 5 years. However, the developer may accept deposits for reservations upon
the approval of a fully executed escrow agreement and reservation agreement form
properly filed with the Division of Florida Condominiums, Timeshares, and Mobile
Homes. Each filing of a proposed reservation program shall be accompanied by a
filing fee of $250. Reservations shall not be taken on a proposed condominium
unless the developer has an ownership, leasehold, or contractual interest in the
land upon which the condominium is to be developed. The division shall notify
the developer within 20 days of receipt of the reservation filing of any
deficiencies contained therein. Such notification shall not preclude the
determination of reservation filing deficiencies at a later date, nor shall it
relieve the developer of any responsibility under the law. The escrow agreement
and the reservation agreement form shall include a statement of the right of the
prospective purchaser to an immediate unqualified refund of the reservation
deposit moneys upon written request to the escrow agent by the prospective
purchaser or the developer.
(b) The executed escrow agreement
signed by the developer and the escrow agent shall contain the following
information:
1. A statement that the escrow agent
will grant a prospective purchaser an immediate, unqualified refund of the
reservation deposit moneys upon written request either directly to the escrow
agent or to the developer.
2. A statement that the escrow agent
is responsible for not releasing moneys directly to the developer except as a
down payment on the purchase price at the time a contract is signed by the
purchaser if provided in the contract.
(c) The reservation agreement form
shall include the following:
1. A statement of the obligation of
the developer to file condominium documents with the division prior to entering
into a binding purchase agreement or binding agreement for a lease of more than
5 years.
2. A statement of the right of the
prospective purchaser to receive all condominium documents as required by this
chapter.
3. The name and address of the escrow agent.
4. A statement as to whether the developer
assures that the purchase price represented in or pursuant to the reservation
agreement will be the price in the contract for purchase and sale or that the
price represented may be exceeded within a stated amount or percentage or that
no assurance is given as to the price in the contract for purchase or sale.
5. A statement that the deposit must be payable
to the escrow agent and that the escrow agent must provide a receipt to the
prospective purchaser.
(3) Upon filing as required by subsection (1),
the developer shall pay to the division a filing fee of $20 for each residential
unit to be sold by the developer which is described in the documents filed. If
the condominium is to be built or sold in phases, the fee shall be paid prior to
offering for sale units in any subsequent phase. Every developer who holds a
unit or units for sale in a condominium shall submit to the division any
amendments to documents or items on file with the division and deliver to
purchasers all amendments prior to closing, but in no event, later than 10 days
after the amendment. Upon filing of amendments to documents currently on file
with the division, the developer shall pay to the division a filing fee of up to
$100 per filing, with the exact fee to be set by division rule.
(4) Any developer who complies with this
section is not required to file with any other division or agency of this state
for approval to sell the units in the condominium, the information for the
condominium for which he or she filed.
(5) In addition to those disclosures described
by ss. 718.503 and 718.504, the division is authorized to require such other
disclosure as deemed necessary to fully or fairly disclose all aspects of the
offering.
History.--s. 1, ch. 76-222; s. 8, ch. 79-314; s. 7, ch. 81-185; s. 17,
ch. 84-368; s. 6, ch. 85-60; s. 19, ch. 87-102; s. 18, ch. 91-103; s. 5, ch.
91-426; s. 39, ch. 95-274; s. 868, ch. 97-102; s. 6, ch. 98-195; s. 50, ch.
2008-240.
718.503 Developer
disclosure prior to sale; nondeveloper unit owner disclosure prior to sale;
voidability.--
(1) DEVELOPER DISCLOSURE.--
(a) Contents of contracts.--Any
contract for the sale of a residential unit or a lease thereof for an unexpired
term of more than 5 years shall:
1. Contain the following legend in
conspicuous type: THIS AGREEMENT IS VOIDABLE BY BUYER BY DELIVERING WRITTEN
NOTICE OF THE BUYER'S INTENTION TO CANCEL WITHIN 15 DAYS AFTER THE DATE OF
EXECUTION OF THIS AGREEMENT BY THE BUYER, AND RECEIPT BY BUYER OF ALL OF THE
ITEMS REQUIRED TO BE DELIVERED TO HIM OR HER BY THE DEVELOPER UNDER SECTION
718.503, FLORIDA STATUTES. THIS AGREEMENT IS ALSO VOIDABLE BY BUYER BY
DELIVERING WRITTEN NOTICE OF THE BUYER'S INTENTION TO CANCEL WITHIN 15 DAYS
AFTER THE DATE OF RECEIPT FROM THE DEVELOPER OF ANY AMENDMENT WHICH MATERIALLY
ALTERS OR MODIFIES THE OFFERING IN A MANNER THAT IS ADVERSE TO THE BUYER. ANY
PURPORTED WAIVER OF THESE VOIDABILITY RIGHTS SHALL BE OF NO EFFECT. BUYER MAY
EXTEND THE TIME FOR CLOSING FOR A PERIOD OF NOT MORE THAN 15 DAYS AFTER THE
BUYER HAS RECEIVED ALL OF THE ITEMS REQUIRED. BUYER'S RIGHT TO VOID THIS
AGREEMENT SHALL TERMINATE AT CLOSING. FIGURES CONTAINED IN ANY BUDGET DELIVERED
TO THE BUYER PREPARED IN ACCORDANCE WITH THE CONDOMINIUM ACT ARE ESTIMATES ONLY
AND REPRESENT AN APPROXIMATION OF FUTURE EXPENSES BASED ON FACTS AND
CIRCUMSTANCES EXISTING AT THE TIME OF THE PREPARATION OF THE BUDGET BY THE
DEVELOPER. ACTUAL COSTS OF SUCH ITEMS MAY EXCEED THE ESTIMATED COSTS. SUCH
CHANGES IN COST DO NOT CONSTITUTE MATERIAL ADVERSE CHANGES IN THE OFFERING.
2. Contain the following caveat in
conspicuous type on the first page of the contract: ORAL REPRESENTATIONS CANNOT
BE RELIED UPON AS CORRECTLY STATING THE REPRESENTATIONS OF THE DEVELOPER. FOR
CORRECT REPRESENTATIONS, REFERENCE SHOULD BE MADE TO THIS CONTRACT AND THE
DOCUMENTS REQUIRED BY SECTION 718.503, FLORIDA STATUTES, TO BE FURNISHED BY A
DEVELOPER TO A BUYER OR LESSEE.
3. If the unit has been occupied by
someone other than the buyer, contain a statement that the unit has been
occupied.
4. If the contract is for the sale or
transfer of a unit subject to a lease, include as an exhibit a copy of the
executed lease and shall contain within the text in conspicuous type: THE UNIT
IS SUBJECT TO A LEASE (OR SUBLEASE).
5. If the contract is for the lease of
a unit for a term of 5 years or more, include as an exhibit a copy of the
proposed lease.
6. If the contract is for the sale or
lease of a unit that is subject to a lien for rent payable under a lease of a
recreational facility or other commonly used facility, contain within the text
the following statement in conspicuous type: THIS CONTRACT IS FOR THE TRANSFER
OF A UNIT THAT IS SUBJECT TO A LIEN FOR RENT PAYABLE UNDER A LEASE OF COMMONLY
USED FACILITIES. FAILURE TO PAY RENT MAY RESULT IN FORECLOSURE OF THE LIEN.
7. State the name and address of the
escrow agent required by s. 718.202
and state that the purchaser may obtain a receipt for his or her deposit from
the escrow agent upon request.
8. If the contract is for the sale or
transfer of a unit in a condominium in which timeshare estates have been or may
be created, contain within the text in conspicuous type: UNITS IN THIS
CONDOMINIUM ARE SUBJECT TO TIMESHARE ESTATES. The contract for the sale of a fee
interest in a timeshare estate shall also contain, in conspicuous type, the
following: FOR THE PURPOSE OF AD VALOREM TAXES OR SPECIAL ASSESSMENTS LEVIED BY
TAXING AUTHORITIES AGAINST A FEE INTEREST IN A TIMESHARE ESTATE, THE MANAGING
ENTITY IS GENERALLY CONSIDERED THE TAXPAYER UNDER FLORIDA LAW. YOU HAVE THE
RIGHT TO CHALLENGE AN ASSESSMENT BY A TAXING AUTHORITY RELATING TO YOUR
TIMESHARE ESTATE PURSUANT TO THE PROVISIONS OF CHAPTER 194, FLORIDA STATUTES.
(b) Copies of documents to be
furnished to prospective buyer or lessee.--Until such time as the developer
has furnished the documents listed below to a person who has entered into a
contract to purchase a residential unit or lease it for more than 5 years, the
contract may be voided by that person, entitling the person to a refund of any
deposit together with interest thereon as provided in s. 718.202. The contract
may be terminated by written notice from the proposed buyer or lessee delivered
to the developer within 15 days after the buyer or lessee receives all of the
documents required by this section. The developer may not close for 15 days
following the execution of the agreement and delivery of the documents to the
buyer as evidenced by a signed receipt for documents unless the buyer is
informed in the 15-day voidability period and agrees to close prior to the
expiration of the 15 days. The developer shall retain in his or her records a
separate agreement signed by the buyer as proof of the buyer's agreement to
close prior to the expiration of said voidability period. Said proof shall be
retained for a period of 5 years after the date of the closing of the
transaction. The documents to be delivered to the prospective buyer are the
prospectus or disclosure statement with all exhibits, if the development is
subject to the provisions of s. 718.504, or, if not, then copies of the
following which are applicable:
1. The question and answer sheet
described in s. 718.504, and declaration of condominium, or the proposed
declaration if the declaration has not been recorded, which shall include the
certificate of a surveyor approximately representing the locations required by
s. 718.104.
2. The documents creating the
association.
3. The bylaws.
4. The ground lease or other
underlying lease of the condominium.
5. The management contract,
maintenance contract, and other contracts for management of the association and
operation of the condominium and facilities used by the unit owners having a
service term in excess of 1 year, and any management contracts that are
renewable.
6. The estimated operating budget for
the condominium and a schedule of expenses for each type of unit, including fees
assessed pursuant to s. 718.113(1) for the maintenance of limited common
elements where such costs are shared only by those entitled to use the limited
common elements.
7. The lease of recreational and other
facilities that will be used only by unit owners of the subject condominium.
8. The lease of recreational and other
common facilities that will be used by unit owners in common with unit owners of
other condominiums.
9. The form of unit lease if the offer
is of a leasehold.
10. Any declaration of servitude of
properties serving the condominium but not owned by unit owners or leased to
them or the association.
11. If the development is to be built
in phases or if the association is to manage more than one condominium, a
description of the plan of phase development or the arrangements for the
association to manage two or more condominiums.
12. If the condominium is a conversion
of existing improvements, the statements and disclosure required by s. 718.616.
13. The form of agreement for sale or
lease of units.
14. A copy of the floor plan of the
unit and the plot plan showing the location of the residential buildings and the
recreation and other common areas.
15. A copy of all covenants and
restrictions which will affect the use of the property and which are not
contained in the foregoing.
16. If the developer is required by
state or local authorities to obtain acceptance or approval of any dock or
marina facilities intended to serve the condominium, a copy of any such
acceptance or approval acquired by the time of filing with the division under s.
718.502(1), or a statement that such acceptance or approval has not been
acquired or received.
17. Evidence demonstrating that the
developer has an ownership, leasehold, or contractual interest in the land upon
which the condominium is to be developed.
(c) Subsequent estimates; when
provided.--If the closing on a contract occurs more than 12 months after the
filing of the offering circular with the division, the developer shall provide a
copy of the current estimated operating budget of the association to the buyer
at closing, which shall not be considered an amendment that modifies the
offering provided any changes to the association's budget from the budget given
to the buyer at the time of contract signing were the result of matters beyond
the developer's control. Changes in budgets of any master association,
recreation association, or club and similar budgets for entities other than the
association shall likewise not be considered amendments that modify the
offering. It is the intent of this paragraph to clarify existing law.
(2) NONDEVELOPER DISCLOSURE.--
(a) Each unit owner who is not a
developer as defined by this chapter shall comply with the provisions of this
subsection prior to the sale of his or her unit. Each prospective purchaser who
has entered into a contract for the purchase of a condominium unit is entitled,
at the seller's expense, to a current copy of the declaration of condominium,
articles of incorporation of the association, bylaws and rules of the
association, financial information required by s. 718.111, and the document
entitled "Frequently Asked Questions and Answers" required by s.
718.504. On and after January 1, 2009, the prospective purchaser shall also be
entitled to receive from the seller a copy of a governance form. Such form shall
be provided by the division summarizing governance of condominium associations.
In addition to such other information as the division considers helpful to a
prospective purchaser in understanding association governance, the governance
form shall address the following subjects:
1. The role of the board in conducting
the day-to-day affairs of the association on behalf of, and in the best
interests of, the owners.
2. The board's responsibility to
provide advance notice of board and membership meetings.
3. The rights of owners to attend and
speak at board and membership meetings.
4. The responsibility of the board and
of owners with respect to maintenance of the condominium property.
5. The responsibility of the board and
owners to abide by the condominium documents, this chapter, rules adopted by the
division, and reasonable rules adopted by the board.
6. Owners' rights to inspect and copy
association records and the limitations on such rights.
7. Remedies available to owners with
respect to actions by the board which may be abusive or beyond the board's power
and authority.
8. The right of the board to hire a
property management firm, subject to its own primary responsibility for such
management.
9. The responsibility of owners with
regard to payment of regular or special assessments necessary for the operation
of the property and the potential consequences of failure to pay such
assessments.
10. The voting rights of owners.
11. Rights and obligations of the
board in enforcement of rules in the condominium documents and rules adopted by
the board.
The governance form shall also include the following statement in conspicuous
type: "This publication is intended as an informal educational overview of
condominium governance. In the event of a conflict, the provisions of chapter
718, Florida Statutes, rules adopted by the 1Division of Florida
Condominiums, Timeshares, and Mobile Homes of the Department of Business and
Professional Regulation, the provisions of the condominium documents, and
reasonable rules adopted by the condominium association's board of
administration prevail over the contents of this publication."
(b) If a person licensed under part I
of chapter 475 provides to or otherwise obtains for a prospective purchaser the
documents described in this subsection, the person is not liable for any error
or inaccuracy contained in the documents.
(c) Each contract entered into after
July 1, 1992, for the resale of a residential unit shall contain in conspicuous
type either:
1. A clause which states: THE BUYER
HEREBY ACKNOWLEDGES THAT BUYER HAS BEEN PROVIDED A CURRENT COPY OF THE
DECLARATION OF CONDOMINIUM, ARTICLES OF INCORPORATION OF THE ASSOCIATION, BYLAWS
AND RULES OF THE ASSOCIATION, AND A COPY OF THE MOST RECENT YEAR-END FINANCIAL
INFORMATION AND FREQUENTLY ASKED QUESTIONS AND ANSWERS DOCUMENT MORE THAN 3
DAYS, EXCLUDING SATURDAYS, SUNDAYS, AND LEGAL HOLIDAYS, PRIOR TO EXECUTION OF
THIS CONTRACT; or
2. A clause which states: THIS
AGREEMENT IS VOIDABLE BY BUYER BY DELIVERING WRITTEN NOTICE OF THE BUYER'S
INTENTION TO CANCEL WITHIN 3 DAYS, EXCLUDING SATURDAYS, SUNDAYS, AND LEGAL
HOLIDAYS, AFTER THE DATE OF EXECUTION OF THIS AGREEMENT BY THE BUYER AND RECEIPT
BY BUYER OF A CURRENT COPY OF THE DECLARATION OF CONDOMINIUM, ARTICLES OF
INCORPORATION, BYLAWS AND RULES OF THE ASSOCIATION, AND A COPY OF THE MOST
RECENT YEAR-END FINANCIAL INFORMATION AND FREQUENTLY ASKED QUESTIONS AND ANSWERS
DOCUMENT IF SO REQUESTED IN WRITING. ANY PURPORTED WAIVER OF THESE VOIDABILITY
RIGHTS SHALL BE OF NO EFFECT. BUYER MAY EXTEND THE TIME FOR CLOSING FOR A PERIOD
OF NOT MORE THAN 3 DAYS, EXCLUDING SATURDAYS, SUNDAYS, AND LEGAL HOLIDAYS, AFTER
THE BUYER RECEIVES THE DECLARATION, ARTICLES OF INCORPORATION, BYLAWS AND RULES
OF THE ASSOCIATION, AND A COPY OF THE MOST RECENT YEAR-END FINANCIAL INFORMATION
AND FREQUENTLY ASKED QUESTIONS AND ANSWERS DOCUMENT IF REQUESTED IN WRITING.
BUYER'S RIGHT TO VOID THIS AGREEMENT SHALL TERMINATE AT CLOSING.
A contract that does not conform to the requirements of this paragraph is
voidable at the option of the purchaser prior to closing.
(3) OTHER DISCLOSURE.--
(a) If residential condominium parcels
are offered for sale or lease prior to completion of construction of the units
and of improvements to the common elements, or prior to completion of remodeling
of previously occupied buildings, the developer shall make available to each
prospective purchaser or lessee, for his or her inspection at a place convenient
to the site, a copy of the complete plans and specifications for the
construction or remodeling of the unit offered to him or her and of the
improvements to the common elements appurtenant to the unit.
(b) Sales brochures, if any, shall be
provided to each purchaser, and the following caveat in conspicuous type shall
be placed on the inside front cover or on the first page containing text
material of the sales brochure, or otherwise conspicuously displayed: ORAL
REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY STATING REPRESENTATIONS OF
THE DEVELOPER. FOR CORRECT REPRESENTATIONS, MAKE REFERENCE TO THIS BROCHURE AND
TO THE DOCUMENTS REQUIRED BY SECTION 718.503,
FLORIDA STATUTES, TO BE FURNISHED BY A DEVELOPER TO A BUYER OR LESSEE. If
timeshare estates have been or may be created with respect to any unit in the
condominium, the sales brochure shall contain the following statement in
conspicuous type: UNITS IN THIS CONDOMINIUM ARE SUBJECT TO TIMESHARE ESTATES.
History.--s. 1, ch. 76-222; s. 1, ch. 77-174; s. 8, ch. 78-328; s. 16,
ch. 79-314; s. 4, ch. 80-3; s. 2, ch. 82-199; s. 59, ch. 82-226; s. 18, ch.
84-368; s. 19, ch. 91-103; s. 5, ch. 91-426; s. 14, ch. 92-49; s. 869, ch.
97-102; s. 7, ch. 98-195; s. 5, ch. 98-322; s. 14, ch. 2002-27; s. 10, ch.
2004-345; s. 6, ch. 2004-353; s. 7, ch. 2007-80; s. 24, ch. 2008-28.
1Note.--The reference to the
Division of Florida Condominiums, Timeshares, and Mobile Homes was substituted
by the editors for a reference to the Division of Florida Land Sales,
Condominiums, and Mobile Homes to conform to the redesignation of the division's
name by s. 8, ch. 2008-240.
718.504 Prospectus or
offering circular.--
Every developer of a residential condominium
which contains more than 20 residential units, or which is part of a group of
residential condominiums which will be served by property to be used in common
by unit owners of more than 20 residential units, shall prepare a prospectus or
offering circular and file it with the Division of Florida Condominiums,
Timeshares, and Mobile Homes prior to entering into an enforceable contract of
purchase and sale of any unit or lease of a unit for more than 5 years and shall
furnish a copy of the prospectus or offering circular to each buyer. In addition
to the prospectus or offering circular, each buyer shall be furnished a separate
page entitled "Frequently Asked Questions and Answers," which shall be
in accordance with a format approved by the division and a copy of the financial
information required by s. 718.111. This page shall, in readable language,
inform prospective purchasers regarding their voting rights and unit use
restrictions, including restrictions on the leasing of a unit; shall indicate
whether and in what amount the unit owners or the association is obligated to
pay rent or land use fees for recreational or other commonly used facilities;
shall contain a statement identifying that amount of assessment which, pursuant
to the budget, would be levied upon each unit type, exclusive of any special
assessments, and which shall further identify the basis upon which assessments
are levied, whether monthly, quarterly, or otherwise; shall state and identify
any court cases in which the association is currently a party of record in which
the association may face liability in excess of $100,000; and which shall
further state whether membership in a recreational facilities association is
mandatory, and if so, shall identify the fees currently charged per unit type.
The division shall by rule require such other disclosure as in its judgment will
assist prospective purchasers. The prospectus or offering circular may include
more than one condominium, although not all such units are being offered for
sale as of the date of the prospectus or offering circular. The prospectus or
offering circular must contain the following information:
(1) The front cover or the first page
must contain only:
(a) The name of the condominium.
(b) The following statements in
conspicuous type:
1. THIS PROSPECTUS (OFFERING CIRCULAR)
CONTAINS IMPORTANT MATTERS TO BE CONSIDERED IN ACQUIRING A CONDOMINIUM UNIT.
2. THE STATEMENTS CONTAINED HEREIN ARE
ONLY SUMMARY IN NATURE. A PROSPECTIVE PURCHASER SHOULD REFER TO ALL REFERENCES,
ALL EXHIBITS HERETO, THE CONTRACT DOCUMENTS, AND SALES MATERIALS.
3. ORAL REPRESENTATIONS CANNOT BE
RELIED UPON AS CORRECTLY STATING THE REPRESENTATIONS OF THE DEVELOPER. REFER TO
THIS PROSPECTUS (OFFERING CIRCULAR) AND ITS EXHIBITS FOR CORRECT
REPRESENTATIONS.
(2) Summary: The next page must
contain all statements required to be in conspicuous type in the prospectus or
offering circular.
(3) A separate index of the contents
and exhibits of the prospectus.
(4) Beginning on the first page of the
text (not including the summary and index), a description of the condominium,
including, but not limited to, the following information:
(a) Its name and location.
(b) A description of the condominium
property, including, without limitation:
1. The number of buildings, the number
of units in each building, the number of bathrooms and bedrooms in each unit,
and the total number of units, if the condominium is not a phase condominium, or
the maximum number of buildings that may be contained within the condominium,
the minimum and maximum numbers of units in each building, the minimum and
maximum numbers of bathrooms and bedrooms that may be contained in each unit,
and the maximum number of units that may be contained within the condominium, if
the condominium is a phase condominium.
2. The page in the condominium
documents where a copy of the plot plan and survey of the condominium is
located.
3. The estimated latest date of
completion of constructing, finishing, and equipping. In lieu of a date, the
description shall include a statement that the estimated date of completion of
the condominium is in the purchase agreement and a reference to the article or
paragraph containing that information.
(c) The maximum number of units that
will use facilities in common with the condominium. If the maximum number of
units will vary, a description of the basis for variation and the minimum amount
of dollars per unit to be spent for additional recreational facilities or
enlargement of such facilities. If the addition or enlargement of facilities
will result in a material increase of a unit owner's maintenance expense or
rental expense, if any, the maximum increase and limitations thereon shall be
stated.
(5)(a) A statement in conspicuous type
describing whether the condominium is created and being sold as fee simple
interests or as leasehold interests. If the condominium is created or being sold
on a leasehold, the location of the lease in the disclosure materials shall be
stated.
(b) If timeshare estates are or may be
created with respect to any unit in the condominium, a statement in conspicuous
type stating that timeshare estates are created and being sold in units in the
condominium.
(6) A description of the recreational
and other commonly used facilities that will be used only by unit owners of the
condominium, including, but not limited to, the following:
(a) Each room and its intended
purposes, location, approximate floor area, and capacity in numbers of people.
(b) Each swimming pool, as to its
general location, approximate size and depths, approximate deck size and
capacity, and whether heated.
(c) Additional facilities, as to the
number of each facility, its approximate location, approximate size, and
approximate capacity.
(d) A general description of the items
of personal property and the approximate number of each item of personal
property that the developer is committing to furnish for each room or other
facility or, in the alternative, a representation as to the minimum amount of
expenditure that will be made to purchase the personal property for the
facility.
(e) The estimated date when each room
or other facility will be available for use by the unit owners.
(f)1. An identification of each room
or other facility to be used by unit owners that will not be owned by the unit
owners or the association;
2. A reference to the location in the
disclosure materials of the lease or other agreements providing for the use of
those facilities; and
3. A description of the terms of the
lease or other agreements, including the length of the term; the rent payable,
directly or indirectly, by each unit owner, and the total rent payable to the
lessor, stated in monthly and annual amounts for the entire term of the lease;
and a description of any option to purchase the property leased under any such
lease, including the time the option may be exercised, the purchase price or how
it is to be determined, the manner of payment, and whether the option may be
exercised for a unit owner's share or only as to the entire leased property.
(g) A statement as to whether the
developer may provide additional facilities not described above; their general
locations and types; improvements or changes that may be made; the approximate
dollar amount to be expended; and the maximum additional common expense or cost
to the individual unit owners that may be charged during the first annual period
of operation of the modified or added facilities.
Descriptions as to locations, areas, capacities, numbers, volumes, or sizes may
be stated as approximations or minimums.
(7) A description of the recreational
and other facilities that will be used in common with other condominiums,
community associations, or planned developments which require the payment of the
maintenance and expenses of such facilities, directly or indirectly, by the unit
owners. The description shall include, but not be limited to, the following:
(a) Each building and facility
committed to be built.
(b) Facilities not committed to be
built except under certain conditions, and a statement of those conditions or
contingencies.
(c) As to each facility committed to
be built, or which will be committed to be built upon the happening of one of
the conditions in paragraph (b), a statement of whether it will be owned by the
unit owners having the use thereof or by an association or other entity which
will be controlled by them, or others, and the location in the exhibits of the
lease or other document providing for use of those facilities.
(d) The year in which each facility
will be available for use by the unit owners or, in the alternative, the maximum
number of unit owners in the project at the time each of all of the facilities
is committed to be completed.
(e) A general description of the items
of personal property, and the approximate number of each item of personal
property, that the developer is committing to furnish for each room or other
facility or, in the alternative, a representation as to the minimum amount of
expenditure that will be made to purchase the personal property for the
facility.
(f) If there are leases, a description
thereof, including the length of the term, the rent payable, and a description
of any option to purchase.
Descriptions shall include location, areas, capacities, numbers, volumes, or
sizes and may be stated as approximations or minimums.
(8) Recreation lease or associated
club membership:
(a) If any recreational facilities or
other facilities offered by the developer and available to, or to be used by,
unit owners are to be leased or have club membership associated, the following
statement in conspicuous type shall be included: THERE IS A RECREATIONAL
FACILITIES LEASE ASSOCIATED WITH THIS CONDOMINIUM; or, THERE IS A CLUB
MEMBERSHIP ASSOCIATED WITH THIS CONDOMINIUM. There shall be a reference to the
location in the disclosure materials where the recreation lease or club
membership is described in detail.
(b) If it is mandatory that unit
owners pay a fee, rent, dues, or other charges under a recreational facilities
lease or club membership for the use of facilities, there shall be in
conspicuous type the applicable statement:
1. MEMBERSHIP IN THE RECREATIONAL
FACILITIES CLUB IS MANDATORY FOR UNIT OWNERS; or
2. UNIT OWNERS ARE REQUIRED, AS A
CONDITION OF OWNERSHIP, TO BE LESSEES UNDER THE RECREATIONAL FACILITIES LEASE;
or
3. UNIT OWNERS ARE REQUIRED TO PAY
THEIR SHARE OF THE COSTS AND EXPENSES OF MAINTENANCE, MANAGEMENT, UPKEEP,
REPLACEMENT, RENT, AND FEES UNDER THE RECREATIONAL FACILITIES LEASE (OR THE
OTHER INSTRUMENTS PROVIDING THE FACILITIES); or
4. A similar statement of the nature
of the organization or the manner in which the use rights are created, and that
unit owners are required to pay.
Immediately following the applicable statement, the location in the disclosure
materials where the development is described in detail shall be stated.
(c) If the developer, or any other
person other than the unit owners and other persons having use rights in the
facilities, reserves, or is entitled to receive, any rent, fee, or other payment
for the use of the facilities, then there shall be the following statement in
conspicuous type: THE UNIT OWNERS OR THE ASSOCIATION(S) MUST PAY RENT OR LAND
USE FEES FOR RECREATIONAL OR OTHER COMMONLY USED FACILITIES. Immediately
following this statement, the location in the disclosure materials where the
rent or land use fees are described in detail shall be stated.
(d) If, in any recreation format,
whether leasehold, club, or other, any person other than the association has the
right to a lien on the units to secure the payment of assessments, rent, or
other exactions, there shall appear a statement in conspicuous type in
substantially the following form:
1. THERE IS A LIEN OR LIEN RIGHT
AGAINST EACH UNIT TO SECURE THE PAYMENT OF RENT AND OTHER EXACTIONS UNDER THE
RECREATION LEASE. THE UNIT OWNER'S FAILURE TO MAKE THESE PAYMENTS MAY RESULT IN
FORECLOSURE OF THE LIEN; or
2. THERE IS A LIEN OR LIEN RIGHT
AGAINST EACH UNIT TO SECURE THE PAYMENT OF ASSESSMENTS OR OTHER EXACTIONS COMING
DUE FOR THE USE, MAINTENANCE, UPKEEP, OR REPAIR OF THE RECREATIONAL OR COMMONLY
USED FACILITIES. THE UNIT OWNER'S FAILURE TO MAKE THESE PAYMENTS MAY RESULT IN
FORECLOSURE OF THE LIEN.
Immediately following the applicable statement, the location in the disclosure
materials where the lien or lien right is described in detail shall be stated.
(9) If the developer or any other
person has the right to increase or add to the recreational facilities at any
time after the establishment of the condominium whose unit owners have use
rights therein, without the consent of the unit owners or associations being
required, there shall appear a statement in conspicuous type in substantially
the following form: RECREATIONAL FACILITIES MAY BE EXPANDED OR ADDED WITHOUT
CONSENT OF UNIT OWNERS OR THE ASSOCIATION(S). Immediately following this
statement, the location in the disclosure materials where such reserved rights
are described shall be stated.
(10) A statement of whether the
developer's plan includes a program of leasing units rather than selling them,
or leasing units and selling them subject to such leases. If so, there shall be
a description of the plan, including the number and identification of the units
and the provisions and term of the proposed leases, and a statement in boldfaced
type that: THE UNITS MAY BE TRANSFERRED SUBJECT TO A LEASE.
(11) The arrangements for management
of the association and maintenance and operation of the condominium property and
of other property that will serve the unit owners of the condominium property,
and a description of the management contract and all other contracts for these
purposes having a term in excess of 1 year, including the following:
(a) The names of contracting parties.
(b) The term of the contract.
(c) The nature of the services
included.
(d) The compensation, stated on a
monthly and annual basis, and provisions for increases in the compensation.
(e) A reference to the volumes and
pages of the condominium documents and of the exhibits containing copies of such
contracts.
Copies of all described contracts shall be attached as exhibits. If there is a
contract for the management of the condominium property, then a statement in
conspicuous type in substantially the following form shall appear, identifying
the proposed or existing contract manager: THERE IS (IS TO BE) A CONTRACT FOR
THE MANAGEMENT OF THE CONDOMINIUM PROPERTY WITH (NAME OF THE CONTRACT MANAGER).
Immediately following this statement, the location in the disclosure materials
of the contract for management of the condominium property shall be stated.
(12) If the developer or any other
person or persons other than the unit owners has the right to retain control of
the board of administration of the association for a period of time which can
exceed 1 year after the closing of the sale of a majority of the units in that
condominium to persons other than successors or alternate developers, then a
statement in conspicuous type in substantially the following form shall be
included: THE DEVELOPER (OR OTHER PERSON) HAS THE RIGHT TO RETAIN CONTROL OF THE
ASSOCIATION AFTER A MAJORITY OF THE UNITS HAVE BEEN SOLD. Immediately following
this statement, the location in the disclosure materials where this right to
control is described in detail shall be stated.
(13) If there are any restrictions
upon the sale, transfer, conveyance, or leasing of a unit, then a statement in
conspicuous type in substantially the following form shall be included: THE
SALE, LEASE, OR TRANSFER OF UNITS IS RESTRICTED OR CONTROLLED. Immediately
following this statement, the location in the disclosure materials where the
restriction, limitation, or control on the sale, lease, or transfer of units is
described in detail shall be stated.
(14) If the condominium is part of a
phase project, the following information shall be stated:
(a) A statement in conspicuous type in
substantially the following form: THIS IS A PHASE CONDOMINIUM. ADDITIONAL LAND
AND UNITS MAY BE ADDED TO THIS CONDOMINIUM. Immediately following this
statement, the location in the disclosure materials where the phasing is
described shall be stated.
(b) A summary of the provisions of the
declaration which provide for the phasing.
(c) A statement as to whether or not
residential buildings and units which are added to the condominium may be
substantially different from the residential buildings and units originally in
the condominium. If the added residential buildings and units may be
substantially different, there shall be a general description of the extent to
which such added residential buildings and units may differ, and a statement in
conspicuous type in substantially the following form shall be included:
BUILDINGS AND UNITS WHICH ARE ADDED TO THE CONDOMINIUM MAY BE SUBSTANTIALLY
DIFFERENT FROM THE OTHER BUILDINGS AND UNITS IN THE CONDOMINIUM. Immediately
following this statement, the location in the disclosure materials where the
extent to which added residential buildings and units may substantially differ
is described shall be stated.
(d) A statement of the maximum number
of buildings containing units, the maximum and minimum numbers of units in each
building, the maximum number of units, and the minimum and maximum square
footage of the units that may be contained within each parcel of land which may
be added to the condominium.
(15) If a condominium created on or
after July 1, 2000, is or may become part of a multicondominium, the following
information must be provided:
(a) A statement in conspicuous type in
substantially the following form: THIS CONDOMINIUM IS (MAY BE) PART OF A
MULTICONDOMINIUM DEVELOPMENT IN WHICH OTHER CONDOMINIUMS WILL (MAY) BE OPERATED
BY THE SAME ASSOCIATION. Immediately following this statement, the location in
the prospectus or offering circular and its exhibits where the multicondominium
aspects of the offering are described must be stated.
(b) A summary of the provisions in the
declaration, articles of incorporation, and bylaws which establish and provide
for the operation of the multicondominium, including a statement as to whether
unit owners in the condominium will have the right to use recreational or other
facilities located or planned to be located in other condominiums operated by
the same association, and the manner of sharing the common expenses related to
such facilities.
(c) A statement of the minimum and
maximum number of condominiums, and the minimum and maximum number of units in
each of those condominiums, which will or may be operated by the association,
and the latest date by which the exact number will be finally determined.
(d) A statement as to whether any of
the condominiums in the multicondominium may include units intended to be used
for nonresidential purposes and the purpose or purposes permitted for such use.
(e) A general description of the
location and approximate acreage of any land on which any additional
condominiums to be operated by the association may be located.
(16) If the condominium is created by
conversion of existing improvements, the following information shall be stated:
(a) The information required by s.
718.616.
(b) A caveat that there are no express
warranties unless they are stated in writing by the developer.
(17) A summary of the restrictions, if
any, to be imposed on units concerning the use of any of the condominium
property, including statements as to whether there are restrictions upon
children and pets, and reference to the volumes and pages of the condominium
documents where such restrictions are found, or if such restrictions are
contained elsewhere, then a copy of the documents containing the restrictions
shall be attached as an exhibit.
(18) If there is any land that is
offered by the developer for use by the unit owners and that is neither owned by
them nor leased to them, the association, or any entity controlled by unit
owners and other persons having the use rights to such land, a statement shall
be made as to how such land will serve the condominium. If any part of such land
will serve the condominium, the statement shall describe the land and the nature
and term of service, and the declaration or other instrument creating such
servitude shall be included as an exhibit.
(19) The manner in which utility and
other services, including, but not limited to, sewage and waste disposal, water
supply, and storm drainage, will be provided and the person or entity furnishing
them.
(20) An explanation of the manner in
which the apportionment of common expenses and ownership of the common elements
has been determined.
(21) An estimated operating budget for
the condominium and the association, and a schedule of the unit owner's expenses
shall be attached as an exhibit and shall contain the following information:
(a) The estimated monthly and annual
expenses of the condominium and the association that are collected from unit
owners by assessments.
(b) The estimated monthly and annual
expenses of each unit owner for a unit, other than common expenses paid by all
unit owners, payable by the unit owner to persons or entities other than the
association, as well as to the association, including fees assessed pursuant to
s. 718.113(1)
for maintenance of limited common elements where such costs are shared only by
those entitled to use the limited common element, and the total estimated
monthly and annual expense. There may be excluded from this estimate expenses
which are not provided for or contemplated by the condominium documents,
including, but not limited to, the costs of private telephone; maintenance of
the interior of condominium units, which is not the obligation of the
association; maid or janitorial services privately contracted for by the unit
owners; utility bills billed directly to each unit owner for utility services to
his or her unit; insurance premiums other than those incurred for policies
obtained by the condominium; and similar personal expenses of the unit owner. A
unit owner's estimated payments for assessments shall also be stated in the
estimated amounts for the times when they will be due.
(c) The estimated items of expenses of
the condominium and the association, except as excluded under paragraph (b),
including, but not limited to, the following items, which shall be stated as an
association expense collectible by assessments or as unit owners' expenses
payable to persons other than the association:
1. Expenses for the association and
condominium:
a. Administration of the association.
b. Management fees.
c. Maintenance.
d. Rent for recreational and other
commonly used facilities.
e. Taxes upon association property.
f. Taxes upon leased areas.
g. Insurance.
h. Security provisions.
i. Other expenses.
j. Operating capital.
k. Reserves.
l. Fees payable to the division.
2. Expenses for a unit owner:
a. Rent for the unit, if subject to a
lease.
b. Rent payable by the unit owner
directly to the lessor or agent under any recreational lease or lease for the
use of commonly used facilities, which use and payment is a mandatory condition
of ownership and is not included in the common expense or assessments for common
maintenance paid by the unit owners to the association.
(d) The following statement in
conspicuous type: THE BUDGET CONTAINED IN THIS OFFERING CIRCULAR HAS BEEN
PREPARED IN ACCORDANCE WITH THE CONDOMINIUM ACT AND IS A GOOD FAITH ESTIMATE
ONLY AND REPRESENTS AN APPROXIMATION OF FUTURE EXPENSES BASED ON FACTS AND
CIRCUMSTANCES EXISTING AT THE TIME OF ITS PREPARATION. ACTUAL COSTS OF SUCH
ITEMS MAY EXCEED THE ESTIMATED COSTS. SUCH CHANGES IN COST DO NOT CONSTITUTE
MATERIAL ADVERSE CHANGES IN THE OFFERING.
(e) Each budget for an association
prepared by a developer consistent with this subsection shall be prepared in
good faith and shall reflect accurate estimated amounts for the required items
in paragraph (c) at the time of the filing of the offering circular with the
division, and subsequent increased amounts of any item included in the
association's estimated budget that are beyond the control of the developer
shall not be considered an amendment that would give rise to rescission rights
set forth in s. 718.503(1)(a)
or (b), nor shall such increases modify, void, or otherwise affect any guarantee
of the developer contained in the offering circular or any purchase contract. It
is the intent of this paragraph to clarify existing law.
(f) The estimated amounts shall be
stated for a period of at least 12 months and may distinguish between the period
prior to the time unit owners other than the developer elect a majority of the
board of administration and the period after that date.
(22) A schedule of estimated closing
expenses to be paid by a buyer or lessee of a unit and a statement of whether
title opinion or title insurance policy is available to the buyer and, if so, at
whose expense.
(23) The identity of the developer and
the chief operating officer or principal directing the creation and sale of the
condominium and a statement of its and his or her experience in this field.
(24) Copies of the following, to the
extent they are applicable, shall be included as exhibits:
(a) The declaration of condominium, or
the proposed declaration if the declaration has not been recorded.
(b) The articles of incorporation
creating the association.
(c) The bylaws of the association.
(d) The ground lease or other
underlying lease of the condominium.
(e) The management agreement and all
maintenance and other contracts for management of the association and operation
of the condominium and facilities used by the unit owners having a service term
in excess of 1 year.
(f) The estimated operating budget for
the condominium and the required schedule of unit owners' expenses.
(g) A copy of the floor plan of the
unit and the plot plan showing the location of the residential buildings and the
recreation and other common areas.
(h) The lease of recreational and
other facilities that will be used only by unit owners of the subject
condominium.
(i) The lease of facilities used by
owners and others.
(j) The form of unit lease, if the
offer is of a leasehold.
(k) A declaration of servitude of
properties serving the condominium but not owned by unit owners or leased to
them or the association.
(l) The statement of condition of the
existing building or buildings, if the offering is of units in an operation
being converted to condominium ownership.
(m) The statement of inspection for
termite damage and treatment of the existing improvements, if the condominium is
a conversion.
(n) The form of agreement for sale or
lease of units.
(o) A copy of the agreement for escrow
of payments made to the developer prior to closing.
(p) A copy of the documents containing
any restrictions on use of the property required by subsection (17).
(25) Any prospectus or offering
circular complying, prior to the effective date of this act, with the provisions
of former ss. 711.69 and 711.802 may continue to be used without amendment or
may be amended to comply with this chapter.
(26) A brief narrative description of
the location and effect of all existing and intended easements located or to be
located on the condominium property other than those described in the
declaration.
(27) If the developer is required by
state or local authorities to obtain acceptance or approval of any dock or
marina facilities intended to serve the condominium, a copy of any such
acceptance or approval acquired by the time of filing with the division under s.
718.502(1) or a statement that such acceptance or approval has not been acquired
or received.
(28) Evidence demonstrating that the
developer has an ownership, leasehold, or contractual interest in the land upon
which the condominium is to be developed.
History.--s. 1, ch. 76-222; s. 1,
ch. 77-174; s. 9, ch. 78-328; s. 17, ch. 79-314; s. 5, ch. 80-3; s. 19, ch.
84-368; s. 7, ch. 85-60; s. 19, ch. 90-151; s. 20, ch. 91-103; s. 5, ch. 91-426;
s. 15, ch. 92-49; s. 870, ch. 97-102; s. 6, ch. 98-322; s. 61, ch. 2000-302; s.
22, ch. 2001-64; s. 15, ch. 2002-27; s. 8, ch. 2007-80; s. 51, ch. 2008-240
718.505 Good faith effort
to comply.--If a developer, in good faith, has attempted to comply with the
requirements of this part, and if, in fact, he or she has substantially complied
with the disclosure requirements of this chapter, nonmaterial errors or
omissions in the disclosure materials shall not be actionable.
History.--s. 1, ch. 76-222; s. 871, ch. 97-102.
718.506 Publication of
false and misleading information.--
(1) Any person who, in reasonable reliance upon
any material statement or information that is false or misleading and published
by or under authority from the developer in advertising and promotional
materials, including, but not limited to, a prospectus, the items required as
exhibits to a prospectus, brochures, and newspaper advertising, pays anything of
value toward the purchase of a condominium parcel located in this state shall
have a cause of action to rescind the contract or collect damages from the
developer for his or her loss prior to the closing of the transaction. After the
closing of the transaction, the purchaser shall have a cause of action against
the developer for damages under this section from the time of closing until 1
year after the date upon which the last of the events described in paragraphs
(a) through (d) shall occur:
(a) The closing of the transaction;
(b) The first issuance by the applicable
governmental authority of a certificate of occupancy or other evidence of
sufficient completion of construction of the building containing the unit to
allow lawful occupancy of the unit. In counties or municipalities in which
certificates of occupancy or other evidences of completion sufficient to allow
lawful occupancy are not customarily issued, for the purpose of this section,
evidence of lawful occupancy shall be deemed to be given or issued upon the date
that such lawful occupancy of the unit may first be allowed under prevailing
applicable laws, ordinances, or statutes;
(c) The completion by the developer of the
common elements and such recreational facilities, whether or not the same are
common elements, which the developer is obligated to complete or provide under
the terms of the written contract or written agreement for purchase or lease of
the unit; or
(d) In the event there shall not be a written
contract or agreement for sale or lease of the unit, then the completion by the
developer of the common elements and such recreational facilities, whether or
not the same are common elements, which the developer would be obligated to
complete under any rule of law applicable to the developer's obligation.
Under no circumstances shall a cause of action created or recognized under this
section survive for a period of more than 5 years after the closing of the
transaction.
(2) In any action for relief under this section
or under s. 718.503, the prevailing party shall be entitled to recover
reasonable attorney's fees.
History.--s. 1, ch. 76-222; s. 872, ch. 97-102.
718.507 Zoning and building
laws, ordinances, and regulations.--All laws, ordinances, and regulations
concerning buildings or zoning shall be construed and applied with reference to
the nature and use of such property, without regard to the form of ownership. No
law, ordinance, or regulation shall establish any requirement concerning the
use, location, placement, or construction of buildings or other improvements
which are, or may thereafter be, subjected to the condominium form of ownership,
unless such requirement shall be equally applicable to all buildings and
improvements of the same kind not then, or thereafter to be, subjected to the
condominium form of ownership. This section does not apply if the owner in fee
of any land enters into and records a covenant that existing improvements or
improvements to be constructed shall not be converted to the condominium form of
residential ownership prior to 5 years after the later of the date of the
covenant or completion date of the improvements. Such covenant shall be entered
into with the governing body of the municipality in which the land is located
or, if the land is not located in a municipality, with the governing body of the
county in which the land is located.
History.--s. 1, ch. 76-222; s. 6, ch. 80-3.
718.508 Regulation by
Division of Hotels and Restaurants.--
In addition to the authority, regulation, or
control exercised by the Division of Florida Condominiums, Timeshares, and
Mobile Homes pursuant to this act with respect to condominiums, buildings
included in a condominium property are subject to the authority, regulation, or
control of the Division of Hotels and Restaurants of the Department of Business
and Professional Regulation, to the extent provided in chapter 399.
History.--s. 1, ch. 76-222; s. 8, ch. 85-60; s. 235, ch. 94-218; s.
52, ch. 2008-240.
718.509 Division
of Florida Condominiums, Timeshares, and Mobile Homes Trust Fund.--
(1) There is created within the State
Treasury the Division of Florida Condominiums, Timeshares, and Mobile Homes
Trust Fund to be used for the administration and operation of this chapter and
chapters 718, 719, 721, and 723 by the division.
(2) All moneys collected by the
division from fees, fines, or penalties or from costs awarded to the division by
a court or administrative final order shall be paid into the Division of Florida
Condominiums, Timeshares, and Mobile Homes Trust Fund. The Legislature shall
appropriate funds from this trust fund sufficient to carry out the provisions of
this chapter and the provisions of law with respect to each category of business
covered by the trust fund. The division shall maintain separate revenue accounts
in the trust fund for each of the businesses regulated by the division. The
division shall provide for the proportionate allocation among the accounts of
expenses incurred by the division in the performance of its duties with respect
to each of these businesses. As part of its normal budgetary process, the
division shall prepare an annual report of revenue and allocated expenses
related to the operation of each of these businesses which may be used to
determine fees charged by the division. This subsection shall operate pursuant
to the provisions of s. 215.20.
History.--ss. 10, 32, ch. 79-347; ss. 2, 5, 7, ch. 81-172; ss. 2, 3,
ch. 81-318; s. 3, ch. 83-265; ss. 20, 21, ch. 83-339; ss. 16, 20, ch. 87-102; ss.
8, 33, 34, ch. 88-90; s. 83, ch. 90-132; s. 4, ch. 91-429; s. 53, ch. 2008-240.
Note.--Former
s. 498.019.
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