Florida Statutes 1983, Volume 3 · 2014. 10. 1. · interested party the clerk shall issue a summons to the lienor to show cause within 20 days why his lien should not be enforced

F.S.1983 LIENS. GENERALLY Ch.713

713.20 Waiver or release of liens.-(1) The acceptance by the lienor of an unsecured

note for all or any part of the amount of his demand shall not constitute a waiver of his lien therefor unless expressly so agreed in writing, nor shall it in any way affect the period for filing the notice under s. 713.06(2), or the claim of lien under s. 713.08.

(2) Any person other than a laborer may waive his lien under this chapter at any time, either before or after furnishing services or materials. A laborer may waive his lien only to the extent of labor theretofore performed.

(3) Any person may at any time waive, release or satisfy any part of his lien under part I of this chapter, either as to the amount due for labor performed, or for services or materials furnished or to be furnished, or as to any part or parcel of the real property.

History.-s. 1, ch. 63-135; s. 35, ch. 67-254. Note.-Former s. 84.202.

713.21 Discharge of lien.-A lien properly perfected under this chapter may be discharged by any of the following methods:

(1) By entering satisfaction of the lien upon the margin of the record thereof in the clerk's office when not otherwise prohibited by law. This satisfaction shall be signed by the lienor, his agent or attorney and attested by said clerk. Any person who executes a claim of lien shall have authority to execute a satisfaction in the absence of actual notice of lack of authority to any person relying on the same.

(2) By the satisfaction of the lienor, duly acknowledged and recorded in the clerk's office. Any person who executes a claim of lien shall have authority to execute a satisfaction in the absence of actual notice of lack of authority to any person relying on the same.

(3) By failure to begin an action to enforce the lien within the time prescribed in this part I.

(4) By an order of the circuit court of the county where the property is located, as provided in this subsection. Upon filing a complaint therefor by any interested party the clerk shall issue a summons to the lienor to show cause within 20 days why his lien should not be enforced by action or vacated and canceled of record. Upon failure of the lienor to show cause why his lien should not be enforced or his failure to commence such action before the return date of the summons the court shall forthwith order cancellation of the lien.

(5) By recording in the clerk's office the original or a certified copy of a judgment or decree of a court of competent jurisdiction showing a final determination of the action.


713.22 Duration of lien.-(1) No lien provided by part I shall continue for

a longer period than 1 year after the claim of lien has been recorded, unless within that time an action to enforce the lien is commenced in a court of competent jurisdiction. The continuation of the lien effected by the commencement of the action shall not be good against creditors or subsequent purchasers for a

valuable consideration and without notice, unless a notice of lis pendens is recorded.

(2) An owner or his agent or attorney may elect to shorten the time prescribed in subsection (1) within which to commence an action to enforce any claim of lien or claim against a bond or other security under s. 713.23 or s. 713.24 by recording in the clerk's office a notice in substantially the following form:

NOTICE OF CONTEST OF LIEN To: (Name and address of lienor)

You are notified that the undersigned contests the claim of lien filed by you on __ 19 __ , and recorded in __ Book __ , Page __ , of the public records of __ County, Florida, and that the time within which you may file suit to enforce your lien is limited to 60 days from the date of service of this notice. This __ day of __ 19 __ .

Signed: (Owner or Attorney)

The lien of any lienor upon whom such notice is served and who fails to institute a suit to enforce his lien within 60 days after service of such notice shall be extinguished automatically. The clerk shall mail a copy of the notice of contest to the lien claimant at the address shown in the claim of lien or most recent amendment thereto and shall certify to such service on the face of such notice and record the notice. Service shall be deemed complete upon mailing.

History.-s. 1, ch. 63-135; s. 13, ch. 65-456; s. 35, ch. 67-254; s. 9, ch. 77-353. Note.- Former s. 84.221.

713.23 Payment bond.-(l)(a) The payment bond required to exempt an

owner under part I shall be furnished by the contractor in at least the amount of the original contract price before commencing the construction of the improvement under the direct contract. The bond shall be executed as surety by a surety insurer authorized to do business in this state and shall be conditioned that the contractor shall promptly make payments for labor, services, and material to alllienors under the contractor's direct contract. Any form of bond given by a contractor conditioned to pay for labor, services, and material used to improve real property shall be deemed to include the condition of this subsection.

(b) The owner, contractor, or surety shall furnish a true copy of the bond at the cost of reproduction to any lienor demanding it. Any person who fails or refuses to furnish the copy without justifiable cause shall be liable to the lienor demanding the copy for any damages caused by the refusal or failure.

(c) If a payment bond is furnished within 10 days after receipt of a notice to owner, the owner shall give written notice to the person who serves the notice to owner of the existence of the payment bond, including the name and address of the surety and principal under the bond.

(d) Either before beginning or within 45 days after beginning to furnish labor, materials, or supplies, a lienor who is not in privity with the contractor, except a laborer, shall serve the contractor with notice in writing that the lienor will look to the contractor's bond for protection on the work. If a notice of commencement is not recorded, or a reference to the

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Ch.713 LIENS, GENERALLY F.S.1983

bond is not given in the notice of commencement, and in either case if the lienor not in privity with the contractor is not otherwise notified in writing of the existence of the bond, the lienor not in privity with the contractor shall have 45 days from the date the lienor is notified of the existence of the bond within which to serve the notice. The notice may be in substantially the following form:

NOTICE TO CONTRACTOR

To (name of contractor)

The undersigned notifies you that he has furnished or is furnishing (services or materials) for the improvement of the real property identified as (property descrip.

tion) owned by (owner's name and address) under an order given by __ and that the undersigned will look to the contractor's bond for protection on the work

(Lienor's signature and address)

(e) In addition, any lienor who is not in privity with the contractor and who has not received payment shall serve the contractor with written notice of the performance of the labor or delivery of materials and supplies and the nonpayment therefor within 90 days after performance of the labor or complete delivery of materials and supplies. The notice may be in substantially the following form:

NOTICE OF NONPAYMENT

To (name of contractor and address)

The undersigned notifies you that he has furnished (describe labor. services. or materials> for the improvement of

the real property identified as (property description) owned by (owner's name and address) under order given by __ ' The last of the labor, services, or materials was furnished on __ , 19 __ . The amount now due and unpaid is $ __ .

(Signature and address of lienor)

(f) No action for the labor or materials or supplies may be instituted or prosecuted against the contractor or surety unless both notices have been given. No action shall be instituted or prosecuted against the contractor or against the surety on the bond under this section after 1 year from the performance of the labor or completion of delivery of the materials and supplies.

(g) Any lienor shall have a direct right of action on the bond against the surety. No bond shall contain any provisions restricting the classes of persons protected thereby or the venue of any proceeding. The surety shall not be entitled to the defense of pro tanto discharge as against any lienor because of changes or modifications in the contract to which the surety is not a party; but the liability of the surety shall not be increased beyond the penal sum of the bond.

(2) The bond shall secure every lien under the direct contract accruing subsequent to its execution and delivery, except that of the contractor. Every claim of lien, except that of the contractor, filed sub-

sequent to execution and delivery of the bond shall be transferred to it with the same effect as liens transferred under s. 713.24. Record notice of the transfer shall be effected by the contractor, or any person having an interest in the property against which the claim of lien has been asserted, by recording in the clerk's office a notice in substantially the following form:

NOTICE OF BOND To (Name and Address of Lienor)

You are notified that the claim of lien filed by you on __ , 19 __ , and recorded in Official Records Book __ at page __ of the public records of __ County, Florida, is secured by a bond, a copy being attached.

Signed: (Name of person recording notice)

The notice shall be verified. The clerk shall mail a copy of the notice to the lienor at the address shown in the claim of lien, or the most recent amendment to it; shall certify to the service on the face of the notice; and shall record the notice. The clerk shall receive the same fee as prescribed in s. 713.24(1) for certifying to a transfer of lien.

(3) A payment bond in substantially the following form shall be sufficient:

PAYMENT BOND BY THIS BOND We, __ , as Principal, and

__ , a corporation, as Surety, are bound to __ , herein called Owner, in the sum of $ __ for the payment of which we bind ourselves, our heirs, personal representatives, successors and assigns, jointly and severally.

THE CONDITION OF THIS BOND is that if Principal:

L Promptly makes payments to all lienors supplying labor, material, and supplies used directly or indirectly by Principal in the prosecution of the work provided in the contract dated __ , 19 __ , between Principal and Owner for construction of __ , the contract being made a part of this bond by reference; and

2. Pays Owner all loss, damage, expenses, costs, and attorney's fees, including appellate proceedings, that Owner sustains because of default by Principal under paragraph L of this bond;

then this bond is void; otherwise, it remains in full force.

Any changes in or under the contract documents and compliance or noncompliance with formalities connected with the contract or with the changes do not affect Surety's obligation under this bond.

DATED on _, 19_. (Principall (SEAL)

(Surety's name)

By ____ _ As Attorney-in-Fact

(4) The provisions of s. 713.24(3) shall apply to

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F.S.1983 LIENS, GENERALLY Ch.713

bonds under this section. History.-s. 1, ch. 63-135; s. 14, ch. 65-456; s. 35, ch. 67-254; s. 10, ch. 77-353;

s. 8, ch. 80-97. Note.-Former s. 84.231.

713.24 Transfer of liens to security.-(1) Any lien claimed under part I may be trans

ferred, by any person having an interest in the real property upon which the lien is imposed or the contract under which the lien is claimed, from such real property to other security by either:

(a) Depositing in the clerk's office a sum of money, or

(b) Filing in the clerk's office a bond executed as surety by a surety insurer licensed to do business in this state,

either to be in an amount equal to the amount demanded in such claim of lien, plus interest thereon at 6 percent per year for 3 years, plus $100 to apply on any court costs which may be taxed in any proceeding to enforce said lien_ Such deposit or bond shall be conditioned to pay any judgment or decree which may be rendered for the satisfaction of the lien for which such claim of lien was recorded, and costs not to exceed $100. Upon making such deposit or filing such bond, the clerk shall make and record a certificate showing the transfer of the lien from the real property to the security and mail a copy thereof by registered or certified mail to the lienor named in the claim of lien so transferred, at the address stated therein_ Upon filing the certificate of transfer, the real property shall thereupon be released from the lien claimed, and such lien shall be transferred to said security. The clerk shall be entitled to a fee for making and serving the certificate, in the sum of $10. If the transaction involves the transfer of multiple liens, an additional charge of $5 for each additional lien shall be charged. For recording the certificate and approving the bond, the clerk shall receive his usual statutory service charges as prescribed in s_ 28.24. Any number of liens may be transferred to one such security.

(2) Any excess of the security over the aggregate amount of any judgments or decrees rendered plus costs actually taxed shall be repaid to the party filing the same or his successor in interest. Any deposit of money shall be considered as paid into court and shall be subject to the provisions of law relative to payments of money into court and the disposition of same_

(3) Any party having an interest in such security or the property from which the lien was transferred may at any time, and any number of times, file a complaint in chancery in the circuit court of the county where such security is deposited for an order to require additional security, reduction of security, change or substitution of sureties, payment or discharge thereof or any other matter affecting said security_

(4) If no proceeding to enforce a transferred lien shall be commenced within the time specified in s_ 713.22 or if it appears that the transferred lien has been satisfied ofrecord, the clerk shall return said security upon request of the person depositing or filing the same, or the insurer_

History_-s. 1, ch. 63-135; s. 15, ch. 65-456; s. 35, ch. 67-254; s. 6, ch. 77-354. Note.-Former s. 84.241.

713.25 Applicability of ch. 65-456.-This act shall take effect on July 1, 1965, but shall not apply to any act required to be done within a time period which is running on that date nor shall apply to existing projects where its operation would impair vested rights.


713.26 Redemption and sale.-The right of redemption upon all sales under part I of this chapter shall exist in favor of the person whose interest is sold and may be exercised in the same manner as is or may be provided for redemption of real property from sales under mortgages.

History.-s. 1, ch. 63-135; s. 35, ch. 67-254; s. 4, ch. 71-5. Note.-Former s. 84.251.

713.27 Interplead.-An owner or other person holding funds for disbursement on an improvement shall have the right to interplead such lienor and any other person having or claiming to have an interest in the real property improved or a contract relating to the improvement thereof, whenever there is a dispute between lienors as to the amounts due or to become due them. If the court decrees the interpleader, it may transfer all claims to the funds held by the plaintiff. In such case the court shall require said fund to be deposited in registry of court and, effective upon such deposit, shall decree the real property to be free of all liens and claims of lien of the parties to the suit_


713.28 Judgments in case of failure to establish liens; personal and deficiency judgments or decrees.-

(1) If a lienor shall fail, for any reason, to establish a lien for the full amount found to be due him in an action to enforce the same under the provisions of part I of this chapter, he may, in addition to the lien decreed in his favor, recover a judgment or decree in such action against any party liable therefor for such sums in excess of the lien as are due him or which he might recover in an action on a contract against any party to the action from whom such sums are due him.

(2) In any action heretofore or hereafter brought a court may, either before or after the final adjudication, award a summary money judgment or decree in favor of any party_ This shall not preclude the rendition of other judgments or decrees in the action.

(3) If, upon the sale of the real property under any judgment or decree there is a deficiency of proceeds to pay the amount of such judgment or decree, the judgment or decree may be enforced for the deficiency against any person liable therefor in the same manner and under the same conditions as deficiency decrees in mortgage foreclosures. Any payment made on account of any judgment or decree in favor of a party shall be credited on any other judgment or decree rendered in favor of that party in the same action.

History.-s. I, ch. 63-135; s. 35, ch. 67-254. Note.-Former s. 84.281.

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713.29 Attorney's fees.-In any action brought to enforce a lien under part I, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney for trial and appeal, to be determined by the court, which shall be taxed as part of his costs, as allowed in equitable actions.

History.-s. 1, ch. 63·135; s. 35, ch. 67·254; s. 11, ch. 77-353. Note.- Former s. 84.291.

713.30 Other actions not barre d.-This part I shall be cumulative to other existing remedies and nothing contained in part I of this chapter shall be construed to prevent any lienor or assignee under any contract from maintaining an action thereon at law in like manner as if he had no lien for the security of his debt, and the bringing of such action shall not prejudice his rights under part I of this chapter, except as herein otherwise expressly provided.

History.-s. 1, ch. 63-135; s. 35, ch. 67-254. N ote.-Former s. 84.301.

713.31 Remedies in case of fraud or collusion.-

(1) When the owner or any lienor shall, by fraud or collusion, deprive or attempt to deprive any lienor of benefits or rights to which such lienor is entitled under this part I by establishing or manipulating the contract price or by giving false affidavits, releases, invoices, worthless checks, statements, or written instruments permitted or required under part I of this chapter relating to the improvement of real property hereunder to the detriment of any such lienor, the circuit court in chancery shall have jurisdiction, upon a complaint filed by such lienor, to issue temporary and permanent injunctions, order accountings, grant discovery, utilize all remedies available under creditors' bills and proceedings supplementary to execution, marshal assets, and exercise any other appropriate legal or equitable remedies or procedures without regard to the adequacy of a remedy at law or whether or not irreparable damage has or will be done.

(2)(a) Any lien asserted under this part I in which the lienor has willfully exaggerated the amount for which such lien is claimed or in which the lienor has willfully included a claim for work not performed upon or materials not furnished for the property upon which he seeks to impress such lien or in which the lienor has compiled his claim with such willful and gross negligence as to amount to a willful exaggeration shall be deemed a fraudulent lien.

(b) It shall be a complete defense to any action to enforce a lien under this part I, or against any lien in any action in which the validity of the lien is an issue, that the lien is a fraudulent lien; and the court so finding is empowered to and shall declare the lien unenforceable, and the lienor shall thereupon forfeit his right to any lien on the property upon which he sought to impress such fraudulent lien.

(c) An owner against whose interest in real property a fraudulent lien is filed, or any contractor, subcontractor, or sub-subcontractor who suffers damages as a result of the filing of the fraudulent lien, shall have a right of action for damages occasioned thereby. The action may be instituted independently of any other action, or in connection with a summons to show cause under s. 713.21, or as a counterclaim or

cross-claim to any action to enforce or to determine the validity of the lien. The lienor who files a fraudulent lien shall be liable to the owner or the defrauded party in damages, which shall include court costs, clerk's fees, a reasonable attorney's fee for services in securing the discharge of the lien, the amount of any premium for a bond given to obtain the discharge of the lien, interest on any money deposited for the purpose of discharging the lien, and punitive damages in an amount not exceeding the difference between the amount claimed by the lienor to be due or to become due and the amount actually due or to become due.

History.-8. 1, ch. 63-135; s. 35, ch. 67-254; s. 12, ch. 77-353; s. 260, ch. 79-400; s. 9, ch. 60-97.

Note.-Former s. 84.311.

713.32 Insurance proceeds liable for demands.-The proceeds of any insurance that by the terms of the policy contract are payable to the owner of improved real property or a lienor and actually received or to be received by him because of the damage, destruction, or removal by fire or other casualty of an improvement on which lienors have furnished labor or services or materials shall, after the owner or lienor, as the case may be, has been reimbursed therefrom for any premiums paid by him, be liable to liens or demands for payment provided by part I to the same extent and in the same manner, order of priority, and conditions as the real property or payments under a direct contract would have been, if the improvement not been so damaged, destroyed, or removed. The insurer may pay the proceeds of the policy of insurance to the insured named in the policy and thereupon any liability of the insurer under part I shall cease. The named insured who receives any proceeds of the policy shall be deemed a trustee of the proceeds, and the proceeds shall be deemed trust funds for the purposes designated by this section for a period of 1 year from the date of receipt of the proceeds. This section shall not apply to that part of the proceeds of any policy of insurance payable to a person, including a mortgagee, who holds a lien perfected before the recording of the notice of commencement or recommencement.

History.- s. 1, ch. 63-135; s. 35, ch. 67-254; s. 13, ch. 77-353. Note.-Former s. 84.321.

713.33 Disbursing agent and others may rely on owner's notices.-When the proceeds of a construction or improvement loan or any portion thereof are being disbursed by a person other than the owner, any affidavit, notice or other instrument which is permitted or required under this part to be . furnished to the owner may be relied upon by such other person in making such disbursements to the same extent as the owner is entitled to rely upon the same.


713.34 Misapplication of funds shall constitute embezzlement.-

(1) For the purpose of this section the net proceeds of a loan shall be deemed to be the amount remaining after deducting from the principal amount of the loan:

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(a) Fees and charges legally incident to the procuring of the loan;

(b) The amount required to satisfy prior encumbrances against the real property which is security for such loan and the fees and charges legally incident thereto, if such encumbrances are paid or to be paid with the consent of the lender, from the proceeds of the loan; and

(c) The amount of fees and charges for professional services for which liens are not provided by this part I and which are bona fide rendered in connection with the improving of the real property.

(2) Any person, firm, corporation or agent, officer or employee thereof who procures a loan secured by mortgage or other encumbrance on real property, representing that the net proceeds thereof are to be used for the purpose of improving such real property and who, with intent to defraud, shall use the net proceeds, as defined in subsection (1), or any part thereof for any other purpose than to pay for labor or services performed on, or material furnished for, this specific improvement, while any amount for which he may be or become liable for such labor, services, or materials remains unpaid or while any amount of which he has received notice of nonpayment prescribed by this part I remains unpaid, shall be guilty of embezzlement and shall be prosecuted and, upon conviction, punished in accordance with the provisions of the laws of this state; provided, however, that failure to pay for such labor, services or materials furnished for this specific improvement after receipt of such loan shall constitute prima facie evidence of intent to defraud.

(3) Any person, firm, corporation or agent, officer or employee thereof who, with intent to defraud, shall use the proceeds of any payment made to him on account of improving certain real property, for any other purpose than to pay for labor or services performed on or materials furnished for this specific improvement, while any amount for which he may be or become liable for such labor, services, or materials remains unpaid shall be guilty of embezzlement and shall be prosecuted and, upon conviction, punished in accordance with the provisions of the laws of this state; provided, however, that failure to pay for such labor, services or materials furnished for this specific improvement after receipt of such proceeds shall constitute prima facie evidence of intent to defraud.

(4) The provisions of subsections (2) and (3) shall not apply to mortgage bankers or their agents, servants or employees for their acts in the usual course of the business of lending or disbursing mortgage funds.

History.-s. 1, ch. 63-135; s. 35, ch. 67-254. Note.- Former s. 84.341.

713.35 Making or furnishing false statement shall constitute perjury.-Any person, firm or corporation who shall willfully make or furnish to another person, firm or corporation, an affidavit containing a false statement in connection with the improvement of real property in this state, knowing that the one to whom it was furnished may rely on it, and the one to whom it was furnished shall part with anything of value relying on the truth of such statement as an inducement to do so, shall be guilty of perjury and shall be prosecuted and, upon conviction, pun-

ished in accordance with the provisions of the laws of this state.


713.36 Effective date.-Chapter 63-135 shall take effect at 12:01 a.m., October 1, 1963. The rights of all persons with respect to an improvement that has a time of visible commencement prior to October 1, 1963, shall be determined and enforced as provided in former ss. 84.01-84.35, as they existed prior to October 1, 1963. As to all other rights, former ss. 84.01-84.35, Florida Statutes, are repealed concurrently with the effective time of this part I.

History .-s. 3, ch. 63-135; s. 35, ch. 67-254. Note.-Former s. 84.361.

713.37 Rule of construction.-This part shall not be subject to a rule of liberal construction in favor of any person to whom it applies.

History.-s. 15, ch. 77-353.

713.50 713.56 713.57 713.58

713.585

713.59 713.60 713.61

713.62

713.63

713.64 713.65 713.66

713.67 713.68

713.69

713.691 713.70

713.71 713.73 713.74

713.75

713.76 713.77

713.78

PART II

MISCELLANEOUS LIENS

Liens upon property. Liens for labor on and with machines, etc. Liens for labor on logs and timber. Liens for labor or services on personal

property. Enforcement of lien by sale of motor vehi-

cle. Liens for labor in raising crops. Liens for labor on or for vessels. Liens for manufacturing and repairing arti

cles. Liens for furnishing articles to be manufac

tured. Liens for furnishing locomotives, machine-

ry, etc. Liens for furnishing material for vessels. Liens for care and maintenance of animals. Liens for feed, etc., for racehorses, polo po-

nies and race dogs. Liens for board, lodging, etc., at hotels, etc. Liens for hotels, apartment houses, room

inghouses, boardinghouses, etc. Unlawful to remove property upon which

lien has accrued. Landlord's lien for rent; exemptions. Lien for service of stallions and other ani-

mals. Liens for loans and advances. Priority of foregoing liens. Acquisition of liens by persons in privity

with the owner. Acquisition of liens by persons not in privi

ty with the owner. Release of lien by filing bond. Liens of owners, operators, or keepers of

mobile home or recreational vehicle parks; ejection of occupants.

Liens for recovering, towing, or storing vehicles.

713.50 Liens upon property.-Liens prior in

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dignity to all others accruing thereafter shall exist in favor of the following persons, upon the following described personal property under the circumstances hereinafter mentioned in this part II. This part II is limited to liens on personal property and their enforcement and related matters.

History.-ss. 1,6, ch. 3747, 1887; RS 1726, 1730; s. 1, ch. 5143, 1903; GS 2190, 2196; RGS 3495, 3502; CGL 5349, 5363; s. 44, ch. 16042, 1933; s. 36, ch. 67-254; s. 1, ch. 69-97.

N ote.-Former s. 85.01.

713.56 Liens for labor on and with machines, etc.-In favor of any person by himself or others performing any labor upon or with any engine, machine, apparatus, fixture, implement, newspaper or printing material or other property, or doing work in any hotel; upon such engine, machine, material, apparatus, fixture, implement, newspaper or printing material, or other property, and upon the furniture, furnishings and belongings of said hotel.

History.-s. 6, ch. 3747, 1887; RS 1730; s. 1, ch. 4583, 1897; GS 2196; RGS 3503; CGL 5364; s. 36, ch. 67-254.


713.57 Liens for labor on logs and timber. -In favor of any person by himself or others cutting, rafting, running, driving, or performing other labor upon logs or timber of any kind; on such logs and timber, and on any article manufactured therefrom.

History.-s. 7, ch. 3747, 1887; RS 1731; GS 2197; RGS 3504; CGL 5365; s. 36, ch.67-254.


713.58 Liens for labor or services on personal property.-

(1) In favor of persons performing labor or services for any other person, upon the personal property of the latter upon which the labor or services is performed, or which is used in the business, occupation, or employment in which the labor or services is performed.

(2) It is unlawful for any person, knowingly, willfully, and with intent to defraud, to remove any property upon which a lien has accrued under this section without first making full payment to the person performing labor or services of all sums due and payable for such labor or services or without first having the written consent of such pers.on so performing the labor or services so to remove such property.

(3) In that the possessory right and lien of the person performing labor or services under this section is released, relinquished, and lost by the removal of such property upon which a lien has accrued, it shall be deemed prima facie evidence of intent to defraud if, upon the removal of such property, the person removing such property utters, delivers, or gives any check, draft, or written order for the payment of money in payment of the indebtedness secured by the lien and then stops payment on such check, draft, or written order.

(4) Any person violating the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction shall be punished by fine of not more than $500 or imprisonment in the county jail for not more than 3 months.

History.-s. 10, ch. 3747, 1887; RS 1732; GS 2198; RGS 3505; s. 1, ch. 8474, 1921; CGL 5366; s. 36, ch. 67-254; s. 1, ch. 70-340.

Note.-Former s. 85.09. cf.-s. 329.51 Liens for aircraft; notice.

s. 713.585 Enforcement of lien by sale of motor vehicle.

713.585 Enforcement of lien by sale of motor vehicle.-A person claiming a lien under s. 713.58 for performing labor or services on a motor vehicle may enforce such lien by sale of the vehicle in accordance with the following procedures:

(1) The lienor shall give notice to the registered owner of the vehicle, to the customer as indicated on the order for repair, and to all other persons claiming an interest in or lien thereon, as disclosed by the records of the Department of Highway Safety and Motor Vehicles or of a corresponding agency of any other state in which the vehicle appears registered. Such notice must be sent by registered or certified mail at least 45 days before the proposed or scheduled date of any sale and shall contain:

(a) A description of the vehicle and its location. (b) The name and address of the owner of the ve

hicle, the customer as indicated on the order for repair, and any person claiming an interest in or lien thereon.

(c) The name, address, and telephone number of the lienor.

(d) Notice that the lienor claims a lien on the vehicle for labor and services performed and storage charges, if any, and the cash sum which, if paid to the lienor, would be sufficient to redeem the vehicle from the lien claimed by the lienor.

(e) Notice that the lien claimed by the lienor is subject to enforcement pursuant to this section and that the vehicle may be sold to satisfy the lien.

(f) The date, time, and location of any proposed or scheduled sale of the vehicle and whether such sale shall be private or public. No vehicle may be sold earlier than 60 days after completion of the repair work.

(g) Notice that the owner of the vehicle or any person claiming an interest in or lien thereon has a right to a hearing at any time prior to the scheduled date of sale by filing a demand for hearing with the clerk of the circuit court in the county in which the vehicle is held and mailing copies of the demand for hearing to all other owners and lienors as reflected on the notice. .

(h) Notice that the owner of the vehicle has a right to recover possession of the vehicle without instituting judicjal proceedings by posting bond in accordance with the provisions of s. 559.917.

(i) Notice that any proceeds from the sale of the vehicle remaining after payment of the amount claimed to be due and owing to the lienor will be deposited with the clerk of the circuit court for disposition upon court order pursuant to subsection (6).

(2) If the owner of the vehicle is unknown or his whereabouts cannot be determined, or if the owner or any person notified as provided in subsection (1) fails to acknowledge receipt of such notice, the lienor, at least 20 days before the proposed or scheduled date of sale of the vehicle, shall publish the notice required by this section once in a newspaper circulated in the county where the vehicle is held. A certificate of compliance with the notification provisions of this section, verified by the lienor, together with a copy of the notice and return receipt for mailing of the notice required by this section, or proof of publication, as the case may be, shall be duly and expeditiously filed with the clerk of the circuit court in the county where the vehicle is held.

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(3) At any time prior to the proposed or scheduled date of sale of a vehicle, the owner of the vehicle, or any person claiming an interest in the vehicle or a lien thereon, may file a demand for hearing with the clerk of the circuit court in the county in which the vehicle is held to determine whether the vehicle has been wrongfully taken or withheld from him. Any person who files a demand for hearing shall mail copies of the demand to all other owners and lienors as reflected on the notice required in subsection (1). Upon the filing of a demand for hearing, a hearing shall be held prior to the proposed or scheduled date of sale of the vehicle.

(4) In the event a lienor institutes a judicial proceeding to enforce a lien, no filing fee shall be required at the time of filing, but the court shall require the lienor to pay the filing fee unless the lienor shall prevail in the action.

(5) At the hearing on the complaint, the court shall forthwith issue its order determining:

(a) Whether the vehicle is subject to a valid lien by the lienor and the amount thereof;

(b) The priority of the lien of the lienor as against any existing security interest in the vehicle;

(c) The distribution of any proceeds of the sale by the clerk of the circuit court;

(d) The award of reasonable attorney's fees and costs to the prevailing party; and

(e) The reasonableness of storage charges. (6) A vehicle subject to lien enforcement pursu

ant to this section may be sold by the lienor at public or private sale; however, in the case of a private sale, every aspect of the sale, including the method, manner, time, place, and terms, must be commercially reasonable. Immediately upon the sale of the vehicle and payment in cash of the purchase price, the lienor shall deposit with the clerk of the circuit court the proceeds of the sale less the amount claimed by the lienor for work done and storage, if any, and all reasonable costs and expenses incurred in conducting the sale, including any attorney's fees and costs ordered by the court. Simultaneously with depositing the proceeds of sale remaining after payment to the lienor, the lienor shall file with the clerk a verified report of the sale stating a description of the vehicle sold, including the vehicle identification number; the name and address of the purchaser; the date of the sale; and the selling price. The report shall also itemize the amount retained by the lienor pursuant to this section and shall indicate whether a hearing was demanded and held. All proceeds held by the court shall be held for the benefit of the owner of the vehicle or any lienholder whose lien is discharged by the sale and shall be disbursed only upon order of the court. Unless a proceeding is initiated to validate a claim to such proceeds within 1 year and a day from the date of the sale, the proceeds shall be deemed abandoned property and disposition thereof shall be governed by s. 705.03. The clerk shall receive 5 percent of the proceeds deposited with him, not to exceed $25, for his services under this section.

(7) A copy of the certificate of compliance and the report of sale, certified by the clerk of the court, shall constitute satisfactory proof for application to the Department of Highway Safety and Motor Vehicles for transfer of title, together with any other proof

required by any rules and regulations of the department.

(8) Nothing contained in this section shall be construed as affecting an owner's right to redeem his vehicle from the lien at any time prior to sale by paying the amount claimed by the lienor for work done and assessed storage charges, plus any costs incurred by the repair shop for utilizing enforcement procedures under this section.

(9) Nothing in this section shall operate in derogation of the rights and remedies established by s. 559.917.

(10) When a vehicle is sold by a lienor in accordance with this law, a purchaser for value takes title to the vehicle free and clear of all claims, liens, and encumbrances whatsoever, unless otherwise provided by court order.

History.-s. 1, ch. 80-139; s. 475, ch. 81-259.

713.59 Liens for labor in raising crops.-In favor of any person performing any labor in, or managing or overseeing, the cultivation or harvesting of crops; upon the crops cultivated or harvested.

History.-ch. 1899, 1872; s. 9, ch. 3747, 1887; RS 1733; GS 2199; RGS 3506; CGL 5367; s. 36, ch. 67-254.


713.60 Liens for labor on or for vessels.-In favor of any person performing for himself or others, any labor, or furnishing any materials or supplies for use in the construction of any vessel or watercraft; and in favor of any person performing for himself or others, any labor or service of any kind, on, to or for the use or benefit of a vessel or watercraft, including masters, mates and members of the crew and persons loading or unloading the vessel or putting in or taking out ballast; upon such vessel or watercraft, whether partially or completely constructed and whether launched or on land, her tackle, apparel and furniture.

History.-s. 1, ch. 3612, 1885; RS 1734; GS 2200; s. 10, ch. 7838, 1919; RGS 3507; CGL 5368; s. 36, ch. 67-254.


713.61 Liens for manufacturing and repairing articles.-In favor of any person who shall manufacture, alter or repair any article or thing of value; upon such article or thing.

History.-s. 5, ch. 3747,1887; RS 1735; GS 2201; RGS 3508; CGL 5369; s. 36, ch.67-254.


713.62 Liens for furnishing articles to be manufactured.-In favor of any person who shall furnish any logs, lumber, clay, sand, stone or other material whatsoever, crude or partially or wholly prepared for use, to any mill or other manufactory to be manufactured into any article of value; upon all such articles furnished and upon all articles manufactured therefrom.

History.-s. 7, ch. 3747,1887; RS 1736; GS 2202; RGS 3509; CGL 5370; s. 36, ch.67-254.


713.63 Liens for furnishing locomotives, machinery, etc.-In favor of any person who shall furnish any locomotive or stationary engine, water engine, windmill, car or other machine or parts of machine or instrument for any railroad, telegraph or

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telephone line, mill, distillery, or other manufactory; upon the articles so furnished.

History.-g. 9, eh. 3747, 1887; RS 1737; GS 2203; RGS 3510; CGL 5371; g. 36, eh.67·254.

Note.- Former g. 85.14.

713.64 Liens for furnishing material for vessels.-In favor of any ship chandler, storekeeper or dealer furnishing stores, provisions, rigging or other material to or for the use of any ship, vessel, steamboat or other watercraft; on such ship, vessel, steamboat or other watercraft.

History.-g. 14, eh. 40,1845; gg. 1-4, eh. 1128, 1861; RS 1738; GS 2204; RGS 3511; CGL 5372; g. 36, eh. 67-254.

Note_- Former g. 85.15.

713.65 Liens for care and maintenance of animals.-In favor of all persons feeding or caring for the horse or other animal of another, including all keepers of livery, sale or feed or feed stables, for feeding or taking care of any horse or other animal put in their charge; upon such horse or other animaL

History.-s. I, eh. 3618, 1885; RS 1739; GS 2205; RGS 3512; CGL 5373; s. I, eh. 25048, 1949; g. 36, eh. 67-254.

Note_- Former s. 85.16.

713.66 Liens for feed, etc., for racehorses, polo ponies and race dogs.-In favor of any person who shall furnish corn, oats, hay, grain or other feed or feedstuffs or straw or bedding material to or upon the order of the owner, or the agent, bailee, lessee, or custodian of the owner, of any racehorse, polo pony or race dog, for the unpaid portion of the price of such supplies upon every racehorse, polo pony, or race dog which consumes any part of such supplies. All racehorses and race dogs of such owner which are accustomed to consume supplies of the character delivered, which are at the time of the delivery of such supplies upon the premises to which delivery is made, shall be deemed prima facie to have consumed such supplies. Such lien shall remain valid and enforceable for a period of 1 year from the dates of the respective deliveries of such corn, oats, hay, grain, feed or feedstuffs, or straw; and such liens are to be enforced in the manner provided for the enforcement of other liens on personal property in this state. Said liens shall be superior to any and all claims, liens and mortgages, whether recorded or unrecorded, including, but not limited to, any lessor's or vendor's lien, and any chattel mortgage, which theretofore may have been or thereafter may be created against such racehorse, polo pony or race dog, and to the claims of any and all purchases thereof.

History.-s. I, eh. 17092, 1935; CGL 1936 Supp. 5373(1); g. 7, eh. 22858, 1945; s. 36, eh. 67-254.

Note.- Former s. 85.17.

713.67 Liens for board, lodging, etc., at hotels, etc.-In favor of keepers of hotels, apartment houses, roominghouses, and boardinghouses for the board, lodging and occupancy of and for moneys advanced to transient guests or tenants, upon the goods and chattels belonging to such guests or tenants in such hotel, apartment house, roominghouse or boardinghouse, including garage and storeroom. Upon the nonpayment of such sums in accordance with the rules of such hotels, apartment houses, roominghouses or boardinghouses, the keeper thereof may in-

stantly eject such transient guests or tenants therefrom.

History.-s. 6, eh. 1999, 1874; RS 1740; GS 2206; RGS 3513; CGL 5374; g. 44, eh. 16042, 1933; g. 36, eh. 67-254; s. 6, eh. 73-330.


713.68 Liens for hotels, apartment houses, roominghouses, boardinghouses, etc.-In favor of any person conducting or operating any hotel, apartment house, roominghouse, boardinghouse or tenement house where rooms or apartments are let for hire or rental on a transient basis. Such lien shall exist on all the property including trunks, baggage, jewelry and wearing apparel, guns and sporting goods, furniture and furnishings and other personal property of any person which property is brought into or placed in any room or apartment of any hotel, apartment house, lodginghouse, roominghouse, boardinghouse or tenement house when such person shall occupy, on a transient basis, such room or apartment as tenant, lessee, boarder, roomer or guest for the privilege of which occupancy money or anything of value is to be paid to the person conducting or operating such hotel, apartment house, roominghouse, lodginghouse, boardinghouse or tenement house. Such lien shall continue and be in full force and effect for the amount payable for such occupancy until the same shall have been fully paid and discharged.

History.-g. 1, eh. 12080, 1927; CGL 5375; g. 36, eh. 67-254; s. 7, eh. 73-330. Note.-Former s. 85.19.

cf.-s. 212.03 Transient rentals tax; lien for payment.

713.69 Unlawful to remove property upon which lien has accrued.-It is unlawful for any person to remove any property upon which a lien has accrued under the provisions of s. 713.68 from any hotel, apartment house, roominghouse, lodginghouse, boardinghouse or tenement house without first making full payment to the person operating or conducting the same of all sums due and payable for such occupancy or without first having the written consent of such person so conducting or operating such place to so remove such property. Any person violating the provisions of this section shall, if the property removed in violation hereof be of the value of $50 or less, be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083; and if the property so removed should be of greater value than $50 then such person shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-ss. 2, 3, eh. 12080, 1927; CGL 5376, 7323; s. 36, eh. 67-254; g. 687, eh.71-136.

N ote.-Former s. 85.20. cf.-s. 212.03 Transient rentals tax; lien for payment.

713.691 Landlord's lien for rent; exemptions.

(1) With regard to a residential tenancy, the landlord has a lien on all personal property of the tenant located on the premises for accrued rent due to the landlord under the rental agreement. This lien shall be in addition to any other liens upon such property which the landlord may acquire by law, and may be modified or waived, in whole or in part, by the provisions of a written rental agreement.

(2) When the tenant is the head of a family, per-

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sonal property owned by him in the value of $1,000 is exempt from the lien provided by this section. This subsection does not authorize an exemption any greater than that which may be available to the tenant in s. 4, Art. X of the State Constitution.

(3) The remedy of distress for rent is abolished with regard to residential tenancies.

History.- s. 3, ch. 73·330.

713.70 Lien for service of stallions and other animals.-In favor of owners of stallions, jackasses or bulls, upon the colt or calf of the get of said stallion, jackass or bull, and also upon the mare, jenny or cow served by said stallion, jackass or bull in breeding thereof for the sum stipulated to be paid for the service thereof, by filing at any time within 18 months after the date of service a statement of the account thereof, together with the description as to color and markings of the female served, and the name of the owner at the date of service, in the office of the county clerk of the county wherein the owner of the said female resided at the time of service. Neither the mare, jenny or cow, nor the get thereof, shall be sold within 18 months after the date of service, unless the service fee shall be paid, unless such sale shall be agreed to and approved in writing by the owner of the stallion, jackass or bull at the time of the sale or transfer of the mare, jenny or cow, or offspring thereof. At any time after such mare, jenny or cow shall conceive, anyone having the lien herein provided may enforce the same in the same manner as is now provided by law.

History.-s. I, ch. 4352, 1895; GS 2207; s. I , ch. 7362, 1917; RGS 3514; CGL 5377; s. 36, ch. 67·254.


713.71 Liens for loans and advances.-Any person who shall procure a loan or advance of money or goods and chattels, wares or merchandise or other things of value, to aid him in the business of planting, farming, timber getting or any other kind of businesses in this state, from any factor, merchant, firm or person in this state, or in the United States or in any foreign country, shall, by part II of this chapter, be held to have given to the lender, lenders, or person making such advance, a statutory lien of prior dignity to all other encumbrances, saving and excepting liens for labor and liens in favor of landlords, upon all the timber-getting, all the crops, and products grown or anything else made or grown by said person, through the assistance of said loan or advances; provided, that the lien above-given shall not be created unless the person obtaining or procuring such loan or advance shall give to the person making such loan or advance an instrument of writing consenting to said lien; and the same shall be recorded in the office of the clerk of the circuit court of the county wherein such business of planting, farming or timber-getting is conducted.

History.-s. I, ch. 4163, 1893; GS 2208; RGS 3515; CGL 5378; s. 36, ch. 67·254.

Note.- Former s. 85.22.

713.73 Priority of foregoing liens.-Liens for labor and liens for material provided for by this law shall take priority among themselves according to the times that the notices required to create such liens respectively were given or were recorded in the cases

where record is required; that is to say, each such lien which shall have attached to the property shall be paid before any such lien which shall have subsequently attached thereto, shall be entitled to be paid.

History.-s. 12, ch. 5143, 1903; GS 2209; RGS 3516; CGL 5379; s. 36, ch. 67·254.


713.74 Acquisition of liens by persons in privity with the owner.-As against the owner of personal property upon which a lien is claimed under this part II, the lien shall be acquired by any person in privity with the owner by the performance of the labor or the furnishing of the materials. There shall be no lien upon personal property as against purchasers and creditors without notice unless the person claiming the lien is in possession of the property upon which the lien is claimed. The lien shall continue as long as the possession continues, not to exceed 3 months after performance of the labor or furnishing the material.

History.- RS 1742; s. I, ch. 4582, 1897; SS. 8, 9, 11, ch. 5143, 1903; GS 2210; RGS 3517; CGL 5380; s. 36, ch. 67·254; s. 4, ch. 69·97.


713.75 Acquisition of liens by persons not in privity with the owner.-A person entitled to acquire a lien not in privity with the owner of the personal property shall acquire a lien upon the owner's personal property as against the owner and persons claiming through him by delivery to the owner of a written notice that the person for whom the labor has been performed or the material furnished is indebted to the person performing the labor or furnishing the material in the sum stated in the notice. A person who is performing or is about to perform labor or is furnishing or is about to furnish materials for personal property may deliver to the owner a written cautionary notice that he will do so. A lien shall exist from the time of delivery of either notice for the amount unpaid on the contract of the owner with the person contracting with the lienor and the delivery of the notice shall also create a personal liability against the owner of the personal property in favor of the lienor giving the notice, but not to a greater extent than the amount then unpaid on the contract between the owner and the person with whom the owner contracted. There shall be no lien upon personal property as against creditors and purchasers without notice except under the circumstances and for the time prescribed in s. 713.74 and for the amount of the debt due to the lienor at the time of the service of the notice provided for in this section.

History.-RS 1743; s. 2, ch. 4582, 1897; ss. I, 15, ch. 5143, 1903; GS 2211; RGS 3518; CGL 5381; s. 36, ch. 67·254; s. 5, ch. 69·97.


713.76 Release of lien by filing bond.-(1) Any lienee may release his property from any

lien claimed thereon under this part by filing with the clerk of the circuit court a cash or surety bond, payable to the person claiming the lien, in the amount of the final bill, and conditioned for the payment of any judgment which may be recovered on said lien, with costs.

(2) Whenever a lienee brings an action in the appropriate court with respect to any property which has been wrongfully detained by a lienor in violation

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of this section, the lienee, upon a judgment in the lienee's favor, shall be entitled to damages, reasonable court costs, and attorney's fees sustained by the lienee by reason of such wrongful detention.

(3) Any lienor who, upon the posting of the bond, fails to release or return the property to the lienee pursuant to this section is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 8. ch. 1632, 1868; RS 1749; s. 19, ch. 5143, 1903; GS 2225; RGS 3532; eGL 5396; s. 36, ch. 67-254; s. I, ch. 77-387.

Note.-Former 8. 85.27.

713.77 Liens of owners, operators, or keepers of mobile home or recreational vehicle parks; ejection of occupants.-A lien prior in dignity to all others except a lien for unpaid purchase price shall exist in favor of the owner, operator, or keeper of a mobile home park or recreational vehicle park for rent owing by, and for money or other property advanced to, any occupant thereof upon the goods, chattels, or other personal property of such occupant. Upon the nonpayment of such sums in accordance with the rules of such park, or for failure to observe any provision of this part or the rules and regulations prescribed by the Department of Health and Rehabilitative Services, the owner, operator, or keeper thereof may instantly eject such occupant therefrom. A lien created in favor of an owner or operator of a mobile home park or recreational vehicle park may be enforced in the same manner as is now or may hereafter be provided by law for the enforcement of liens in favor of keepers of hotels and boardinghouses. Nothing in this section, however, shall prevent an owner or operator of a mobile home park or recreational vehicle park from enforcing any claim for rent under and in the manner provided by landlord and tenant acts of this state.

History.-s. 11, ch. 12419, 1927; 8. I, ch. 19365, 1939; eGL 4149; 8. 36, ch. 67-254; 8. 13, ch. 83-321.

N ote.-Former 8. 85.28.

713.78 Liens for recovering, towing, or storing vehicles.-

(1) For the purposes of this section, "vehicle" means any mobile item, whether motorized or not, which is mounted on wheels.

(2) Whenever a person regularly engaged in the business of transporting vehicles by wrecker, to'w truck, or car carrier recovers, removes, or stores a vehicle upon instructions from:

(a) The owner thereof; or (b) The owner or lessor, or a person authorized by

the owner or lessor, of property on which such vehicle is wrongfully parked, and such removal is done in compliance with s. 715.07; or

(c) Any law enforcement agency,

he shall have a lien on such vehicle for a reasonable towing fee and for a reasonable storage fee; except that no storage fee shall be charged if such vehicle is stored for less than 6 hours.

(3)(a) Any person regularly engaged in the business of recovering, towing, or storing vehicles who comes into possession of a vehicle pursuant to subsection (2), and who claims a lien for recovery, towing, or storage services, shall give notice to the regis-

tered owner and to all persons claiming a lien thereon, as disclosed by the records in the Department of Highway Safety and Motor Vehicles or of a corresponding agency in any other state.

(b) Notice by registered or certified mail shall be sent to the registered owner and to all persons claiming a lien within 14 days of the date of possession. It shall state the fact of possession of the vehicle, that a lien as provided in subsection (2) is claimed, that the lien is subject to enforcement pursuant to law, and that the owner or lienholder, if any, has the right to a hearing as set forth in subsection (4).

(4)(a) The owner of a vehicle removed pursuant to the provisions of subsection (2), or any person

. claiming a lien, other than the towing-storage operator, within 5 days of the time he has knowledge of the location of said vehicle, may file a complaint in the county court of the county in which the vehicle is stored or in which the owner resides to determine if his property was wrongfully taken or withheld from him.

(b) Upon filing of a complaint, an owner or lienholder may have his vehicle released upon posting with the court a cash or surety bond or other adequate security equal to the amount of the charges for towing or storage to ensure the payment of such charges in the event he does not prevail. At the time of such release, after reasonable inspection, he shall give a receipt to the towing-storage company reciting any claims he has for loss or damage to the vehicle or the contents thereof.

(c) Upon determination of the respective rights of the parties by the court:

1. Should the owner or lienholder prevail, he may collect damages and costs from the party instigating the tow.

2. Should the person instigating the tow prevail, he shall recover his costs.

3. In any event, the final order shall provide for immediate payment in full of recovery, towing, and storage fees by the vehicle owner or lienholder; or the agency ordering the tow; or the owner, lessor, or agent thereof of the property from which the vehicle was removed.

(5) Any vehicle which is stored pursuant to subsection (2) and which remains unclaimed, or for which reasonable towing or storing charges remain unpaid, may be sold by the owner or operator of the storage space after 45 days from the time the vehicle is stored therein. The sale shall be at public auction for cash. Notice of the sale shall be given to the person in whose name the vehicle is registered and to all persons claiming a lien on the vehicle as shown on the records of the Department of Highway Safety and Motor Vehicles or of the corresponding agency in any other state. Notice shall be sent by registered or certified mail to the owner of the vehicle and the person having the recorded lien on the vehicle at the address shown on the records of the registering agency and shall be mailed not less than 15 days before the dale of the sale. After diligent search and inquiry, if the name and address of the registered owner or the owner of the recorded lien cannot be ascertained, the requirements of notice by mail may be dispensed with. In addition to the notice by mail, public notice of the time and place of sale shall be made by publishing a

1110


notice thereof one time, at least 10 days prior to the date of the sale, in a newspaper of general circulation in the county in which the sale is to be held or by notices posted for 10 days in three public places in the county, one of which shall be at the courthouse, and another in some conspicuous part of the storehouse. The proceeds of the sale, after payment of reasonable towing and storage charges and costs of the sale, shall be deposited with the clerk of the circuit court for the county if the owner is absent, and the clerk shall hold such proceeds subject to the claim of the person legally entitled thereto. The clerk shall be entitled to receive 5 percent of such proceeds for the care and disbursement thereof. The certificate of title issued under this law shall be discharged of all liens except those registered with the Department of Highway Safety and Motor Vehicles.

(6) No person regularly engaged in the business of recovering, towing, or storing vehicles shall be liable for damages connected with such services, provided that they have been performed with reasonable care and provided, further, that, in the case ofremoval of a vehicle upon the request of a person purporting, and reasonably appearing, to be the owner or lessor, or a person authorized by the owner or lessor, of the property from which such vehicle is removed, such removal has been done in compliance with s. 715.07. No person regularly engaged in the business of recovering, towing, or storing vehicles shall operate a wrecker, tow truck, or car carrier unless the name, address, and telephone number of the company performing such service is clearly printed on the side of its vehicle.

Hi.tory.-s. 2, ch. 76-83; s. 1, ch. 79-206; s. 1, ch. 79-244; s. 1, ch. 79-410.

713.801 713.803 713.805 713.807 713.809 713.811 713.813

713.815 713.817 713.819 713.821 713.823 713.825

PART III

OIL AND GAS LIENS

Definitions. Entitlement to lien. Property subject to lien. Subcontractors' lien. Forfeiture or failure of title. Notice to purchasers of oil and gas. Liability of interest holder to subcontrac-

tors. Date lien arises. Parity of liens; exception. When single claim of lien sufficient. Claim of lien. Release of lien by filing bond. Duration of lien.

713.801 Definitions.-As used in this part, the following terms shall have the following meanings unless the context clearly requires another meaning:

(1) "Interest holder" means a person, or his agent, holding, for oil or gas purposes or for any oil or gas pipeline, any interest in the legal or equitable title to any land or any leasehold interest, and shall include purchasers under executory contract, receivers, and trustees.

(2) "Operator" means the person in charge of operations on lands or leaseholds for oil or gas purposes or for any oil or gas pipeline. For the purposes of this

part, an operator shall be deemed to be the agent of the interest holder.

(3) "Material" means any machinery, equipment, appliances, buildings, structures, tools, bits, or supplies used in connection with any construction, drilling, or operating upon any land or leasehold for oil or gas purposes or for any oil or gas pipeline.

(4) "Drilling" means drilling, digging, torpedoing, acidizing, perforating, fracturing, testing, logging, cementing, completing, or repairing upon any land or leasehold for oil or gas purposes or for any oil or gas pipeline.

(5) "Operating" means conducting any operation in connection with, or necessary to, the production of oil or gas, either in the development thereof or in working thereon in the subtractive process.

(6) "Construction" means construction, maintenance, operation, or repair in connection with any oil or gas pipeline or in connection with, or necessary for, the production of oil or gas, either in the development thereof or in working thereon in the subtractive process.

(7) "Oil or gas pipeline" means any pipeline laid and designed as a means of transporting natural gas, oil, or gasoline, or their components or derivatives, and the right-of-way therefor.

(8) "Original contractor" means any person for whose benefit a lien is prescribed by the provisions of s.713.803.

Hi.tory.-s. 1, ch. 75-51.

713.803 Entitlement to Hen.-Any person who, under contract with an interest holder or operator, performs any labor or furnishes any material or service used or furnished to be used:

(1) In the drilling or operating of any oil or gas well upon the land or leasehold of the interest holder or in the construction of any oil or gas pipeline, or

(2) In the construction of any material so used or employed, whether the labor is performed or the material or service is furnished on or off the said land or leasehold,

shall be entitled to a lien, whether or not a producing well is obtained and whether or not such material is consumed or becomes a part of the completed oil or gas well or oil or gas pipeline, for the amount due him for the performance of such labor or the furnishing of such material or service, but in no case greater than the contract price, with legal interest from the date the same was due.

Hi.tory.-s. 1, ch. 75-51.

713.805 Property subject to Hen.-Liens created under s. 713.803 shall extend to:

(1) The leasehold interest or that portion thereof covered by an assignment, farmout agreement, or operating agreement held by the operator, whichever shall be the lesser interest, held for oil or gas purposes or for any oil or gas pipeline for which the material or service was furnished or for which the labor was performed, and the appurtenances thereunto belonging as title thereto existed on the date such labor was first performed or such material or service was first furnished. However, neither the land itself, apart from the rights granted under an oil or gas

1111


lease, nor any mineral interest or royalty interest shall be subject to such lien.

(2) All materials and fixtures owned by the interest holder and used or furnished to be used in the drilling or operating of any oil or gas well, or in the construction of any oil or gas pipeline, located on the land or leasehold held by the interest holder.

(3) All oil or gas wells located on such land or leasehold, the oil or gas produced therefrom, and the proceeds from the sale thereof inuring to those interests subject to such lien.

History.-s. 1. ch. 75-51; s. 1. ch. 77-174.

713.807 Subcontractors' lien.-Any person who shall, under contract, perform any labor or furnish any material or service as a subcontractor under an original contractor, or for or to an original contractor or subcontractor under an original contractor, shall be entitled to a lien for the amount due him, but in no case greater than the contract price, upon all the property upon which the lien of an original contractor may attach, to the same extent as an original contractor. The lien provided for in this section shall further extend and attach to all materials and fixtures owned by such original contractor or subcontractor to whom the labor, services, or materials were furnished.

History.-s. 1. ch. 75-51.

713.809 Forfeiture or failure of title.- If a lien, as provided for in this part, is imposed on an assignment, farmout agreement, operating agreement, or other equitable interest or legal interest in land or in a leasehold estate, which interest is contingent upon the happening of a condition subsequent, such lien may be perfected and entered against such land or against the leasehold estate, notwithstanding the failure of such interest to ripen into legal title or the failure of such conditions subsequent to be fulfilled.


713.811 Notice to purchasers of oil and gas. -No lien under this part, to the extent that it may extend to oil or gas or the proceeds from the sale thereof, shall be effective against any purchaser of such oil or gas until the purchaser has received proper written notice of said claim. Such notice shall state the name of the claimant and his address , the amount for which the lien is claimed, and a description of the land or leasehold upon which the lien is claimed. Notice shall be delivered personally to the purchaser or by registered or certified mail. A purchaser who has received such notice shall withhold payment for such oil or gas runs to the extent of the lien amount claimed, together with legal interest, until said lien has been satisfied or held to be invalid by a court of competent jurisdiction.


713.813 Liability of interest holder to subcontractors.-Nothing in this part shall be deemed to fix a liability upon an interest holder greater than

the amount for which the interest holder would be liable to the original contractor. Payment made by the interest holder to the original contractor prior to notice of a subcontractor's lien shall be considered satisfaction of obligations to the extent of such payments. Payments made by the interest holder to a subcontractor pursuant to a valid lien shall be considered satisfaction of obligations owed by the interest holder to the contractor under the contract to the extent of such payments.

Hi.tory.-s. 1. ch. 75-51.

713.815 Date lien arises.-The liens provided for in this part arise on the date of furnishing of the first item of material or service or the date of performance of the first labor. Upon compliance with the provisions of s. 713.821, such lien shall be preferred to all other titles, charges, liens, or encumbrances which may, subsequent to the date the lien herein provided for arises, attach to or upon any of the property upon which a lien is given by this part.

History.- s. 1. ch. 75-51 .

713.817 Parity of liens; exception.-All liens arising by virtue of this part upon the same property shall be of the same class, except that liens of persons for the performance of labor shall be preferred to all other liens arising by virtue of this part.

Hi.tory.-s. 1. ch. 75-51.

713.819 When single claim of lien sufficient. -All labor performed, and materials and services furnished, by any person entitled to a lien under this part shall, for the purposes of this part, be considered to have been performed or furnished under a single contract, regardless of whether or not the same was performed or furnished at different times or on separate orders. However, no more than 90 days shall have elapsed between the date of performance of such labor or the date of furnishing such materials or services and the date on which labor is next performed or materials or services are next furnished.


713.821 Claim of lien.-The manner of perfecting a lien under this part shall be the same as that provided in s. 713.08.


713.823 Release of lien by filing bond.-Any lienee may release his property from any lien under this part in the manner provided by s. 713.76.

Hi.tory.-s. 1. ch. 75-51.

713.825 Duration of lien.-No lien provided by this part shall continue for a period longer than 1 year after the claim of lien has been recorded, unless within that time an action to enforce the lien is commenced in a court of competent jurisdiction.

Hi.tory.-s. 1. ch. 75-51.

1112

F.S.1983 PROPERTY; GENERAL PROVISIONS Ch.715

CHAPTER 715

PROPERTY; GENERAL PROVISIONS

715.01

715.02

715.03

715.04

715.041

715.05 715.06 715.065

715.07

715.10

715.101 715.102

715.103 715.104

715.105 715.106

715.107 715.108 715.109 715.11

715.111 715.301

715.302 715.303

Title to personal property found in public places.

Prohibiting recovery from seller of forfeited deposit or down payment made by check, draft, or obligation refused through no fault of seller.

Laundries and drycleaners; disposition of unclaimed articles.

Pawnbrokers; disposition of pledged property for nonpayment of principal or interest.

Recovery of stolen property from pawnbro-kers.

Reporting of unclaimed motor vehicles. Real estate; exploration for minerals. Jewelry stores; television or radio repair

stores; disposition of unclaimed articles. Vehicles parked on private property; tow

ing. Disposition of Personal Property Landlord

and Tenant Act; short title. Application of ss. 715.10-715.111. Definitions of terms used in ss .

715.10-715.111. Lost property. Notification of former tenant of personal

property remaining on premises after tenancy has terminated.

Form of notice to former tenant. Form of notice to owner other than former

tenant. Storage of abandoned property. Release of personal property. Sale or disposition of abandoned property. Nonliability of landlord after disposition of

property. Assessing costs of storage. Offer of mobile home park for sale; right of

tenants to purchase. Homeowners' associations. Bylaws of the homeowners' association.

715.01 Title to personal property found in public places.-

(1) The title to all personal property found in or upon public conveyances, premises at the time used for business purposes, parks, places of amusement, public recreation areas, and other places open to the public is hereby vested in the finder unless the same be called for or claimed by the rightful owner thereof within 6 months after the finding thereof.

(2) Employees of any state, county, or municipal agency shall be deemed agents of such governmental entity, and personal property found by them during the course of their official duties shall be turned in to the proper person or department designated to receive such property by the said governmental entity. Such property shall be securely kept for the period of time as required by this section, after which time, if unclaimed by the rightful owner, the title to such

property shall be vested in the state, county, or municipality and not in the employee.

(3) Employees of public transportation systems shall be deemed agents of such transportation systems, and personal property found on public conveyances, in depots, or in garages of said transportation system shall be turned in to the proper person or department designated to receive such property by the said transportation systems. Such property shall be securely kept for the period of time as required by this section, after which time, if unclaimed by the rightful owner, the title of such property shall be vested in the transportation system and not in the employee.

History.-s. I , ch. 24313, 1947; s. I, ch. 78-150.

715.02 Prohibiting recovery from seller of forfeited deposit or down payment made by check, draft, or obligation refused through no fault of seller.-In any action by any person against the seller of real property for any share of a forfeited deposit or down payment by a prospective purchaser, no check, draft or other obligation of such prospective purchaser shall be construed to be a deposit and the action shall not be maintained by any person against the seller by reason thereof, if payment of said check, draft or obligation is refused through no fault of the seller, notwithstanding any recitation of a receipt of said deposit in any written agreement.

History_-s. I , ch. 24304, 1947; s. 11, ch. 25035, 1949.

715.03 Laundries and drycleaners; disposition of unclaimed articles.-If any person shall fail to claim any garment, clothing, household article or other articles delivered for laundering, cleaning, or pressing to any laundry or drycleaning establishment for a period of 6 months after the delivery of such article for laundering, cleaning or processing the laundry or drycleaning establishment to whom the garment, clothing or household article is delivered shall have the right to dispose of such garment, clothing or household article by whatsoever means it may choose without incurring liability or responsibility to the owner provided, however, that before such laundry or drycleaning establishment may claim the benefits of this section it shall at the time of the receiving of such garment, clothing or household articles, give to the individual delivering such article notice in writing that the articles so delivered may be disposed of by such laundry or drycleaning establishment unless such articles are reclaimed within 6 months from date of delivery to such laundry or drycleaning establishments. Provided, further, that if any garment, clothing, household article or other articles referred to above is left at a laundry or drycleaning establishment for storage, and insurance is charged for thereon, then, in that event, the said 6 months as set forth above in this section shall not start to run until the period for which the article so insured has expired and when the time for which the insurance on said garment, clothing or household article shall have expired then the laundry or drycleaning establishment may dispose of the property as though no insurance

1113

Ch.715 PROPERTY; GENERAL PROVISIONS F.S.1983

had been placed on said property in the same way as is provided hereinabove in this section.

History.-s. 1, ch. 57-416.

715.04 Pawnbrokers; disposition of pledged property for nonpayment of principal or interest.-

(1) Any article or articles placed with a licensed pawnbroker within this state pledged as security for a loan of money shall be subject to sale and disposal at public or private sale when there has been no payment on account of principal or interest made for a period of 6 months, subject to the provisions of this section.

(2) Every pawn ticket or receipt for such pledge shall have printed thereon the provisions of subsections (1) and (2) which shall constitute notice to the pledgor of such sale and disposal and shall further constitute notice of intention to sell and dispose of the property without further notice to the pledgor, and shall further constitute consent to such sale by the pledgor. Any sale or disposal of property under this section shall terminate all liability of the pledgee to the pledgor and shall vest in a purchaser the right, title and interest of the pledgor and pawnbroker.

History.-ss. 1,2, ch. 57-811.

715.041 Recovery of stolen property from pawnbrokers.-

(1) Any person who sells property to a pawnbroker or pledges the property as security for a loan shall present either a driver's license or other comparable identification to the pawnbroker. The pawnbroker shall record the date of the transaction, the type of identification, the name and address as it appears on the item of identification, and the identifying number appearing thereon and have the record signed by the person from ·whom he receives the property. This record shall be made available to any law enforcement agency or officer upon request.

(2) The lawful owner of any stolen property in the possession of a pawnbroker may recover such property by informing any law enforcement agency of the location of such property and providing the agency with proof of ownership of the property provided a timely report of the theft of the property was made to the proper authorities. Upon the receipt of such proof, any law enforcement officer is authorized to recover the property from the pawnbroker, without expense to the lawful owner thereof, unless the pawnbroker presents evidence of having received proof of ownership of such property by the person who sold it to the pawnbroker or pledged the property as security for a loan. Any property recovered from a pawnbroker pursuant to this section shall be returned to the lawful owner subject to its use as evidence in any criminal proceeding.

(3) When the lawful owner recovers stolen property and the person who sold or pledged the stolen property to the pawnbroker is convicted of theft, the court may order the defendant to make restitution pursuant to s. 775.089.

History.-s. 1, ch. 79-249.

715.05 Reporting of unclaimed motor vehicles.-

(1) Whenever any law enforcement agency authorizes the removal of an abandoned vehicle or whenever any garage, repair shop, or automotive service, storage, or parking place notifies the law enforcement agency of possession of a vehicle pursuant to s. 715.07(2)(a)2., the applicable law enforcement agency shall contact the Department of Highway Safety and Motor Vehicles within 24 hours through the medium of electronic communications giving the full description of the vehicle. Upon receipt of the full description of the vehicle, the department shall search its files to determine the owner's name and whether any person has filed a lien upon the vehicle as provided in s. 319.27(2) and (3) and notify the applicable law enforcement agency within 72 hours. The person in charge of the garage, repair shop, or automotive service, storage, or parking place shall obtain such information from the applicable law enforcement agency within 5 days from the date of storage and shall, by certified mail, notify the owner and all lienholders of the location of the vehicle and of the fact that it is unclaimed. Such notice shall be given within 5 days from the date of storage and shall be complete upon mailing; however, if the vehicle is registered outside this state, the person in charge of the garage, repair shop, or automotive service, storage, or parking place shall make a good faith best effort in so notifying the owner and any lienholders, and such notice shall be given within a reasonable period of time from the date of storage.

(2) Nothing herein contained shall apply to any licensed public lodging establishment.

(3) Failure to make good faith best efforts to comply with the notice requirement of this section or of s. 715.07(2)(a)2., as appropriate, shall preclude the imposition of any storage charges against such vehicle.

History_-ss. 1,2,3, ch. 63-431; s. 1, ch. 65-112; 8S. 24,35, ch. 69-106; 8.1, ch. 79-271; s. 1, ch. 82-157.

715.06 Real estate; exploration for minerals. -Where title to the surface of real property and title to the subsurface and minerals on or under such real property is divided into different ownerships, then the surface owner and his heirs, successors and assigns shall be entitled to explore, drill and prospect such real property, including the subsurface thereof, for all minerals except oil, gas and sulphur without being liable to the owners of the minerals, or any party or parties claiming under such owners, for any damages or for the value of such minerals, as it is usual by customary prospecting methods and procedures to take from such land for the purpose of analyzing and determining the kind and extent thereof.

History.-s. 1, ch. 67-120.

715.065 Jewelry stores; television or radio repair stores; disposition of unclaimed articles. -If any person fails to claim any article of jewelry or other article delivered to a jewelry store or television or radio repair store for repair, cleaning, or adjustment, for a period of 1 year after such delivery, the jewelry store or television or radio repair store shall have the right to dispose of such jewelry or other article by whatever means it may choose, without incurring liability or responsibility to the owner of such

1114


jewelry or other article. However, before the jewelry store or television or radio repair store may claim the benefits of this section, it shall, at the time of receiving such jewelry or other article, give to the individual delivering such jewelry or other article notice in writing that the jewelry or other article delivered may be disposed of by the jewelry store or television or radio repair store unless the jewelry or other article is reclaimed within 1 year from the date of delivery. Notice by certified mail shall be given to the person who deposits the jewelry or other article of the intended disposition thereof 15 days prior to said disposition. Any value of the jewelry or other articles sold or disposed of pursuant to this section which is in excess of the costs and expenses incurred by the store shall be tendered to the person who deposited the article, within 15 days after the sale or other disposition of the article.

History.-s. I, ch. 76-255.

715.07 Vehicles parked on private property; towing.-

(1) As used in this section, the term "vehicle" means any mobile item which normally uses wheels, whether motorized or not.

(2) The owner or lessor of real property, or any person authorized by the owner or lessor, which person may be the designated representative of the condominium association if the real property is a condominium, may cause any vehicle parked on such property without his permission to be removed by a person regularly engaged in the business of towing vehicles, without liability for the costs of removal, transportation, or storage or damages caused by such removal, transportation, or storage, under any of the following circumstances:

(a) The towing or removal of any vehicle from private property without the consent of the registered owner or other legally authorized person in control of that vehicle is subject to strict compliance with the following conditions and restrictions:

1.a. Any towed or removed vehicle must be stored at a site within 5 miles of the point of removal in any county of 500,000 population or more, and within 15 miles of the point of removal in any county of less than 500,000 population. That site must be open for the purpose of redemption of vehicles on any day that the person or firm towing such vehicle is open for towing purposes, from 11:00 a.m. to 11:00 p.m., and, when closed, shall have prominently posted a sign indicating a telephone number where the operator of the site can be reached at all times. Upon receipt of a telephoned request to open the site to redeem a vehicle, the operator shall return to the site within 1 hour or he will be in violation of this section.

b. If no towing business is located within the area of towing limitations set forth in sub-subparagraph a., the following limitations apply: Any towed or removed vehicle must be stored at a site within 20 miles of the point of removal in any county of 500,000 population or more, and within 30 miles of the point of removal in any county of less than 500,000 population.

2. The person or firm towing or removing the vehicle shall, within 30 minutes of completion of such towing or removal, notify the municipal police de-

partment or, in an unincorporated area, the sheriff of such towing or removal, the storage site, the t ime the vehicle was towed or removed, and the make, model, color, and license plate number of the vehicle and shall obtain the name of the person at that department to whom such information was reported and note that name on the trip record.

3. If the registered owner or other legally authorized person in control of the vehicle arrives at the scene prior to removal or towing of the vehicle, the vehicle shall be disconnected from the towing or removal apparatus, and that person shall be allowed to remove the vehicle without interference upon the payment of a reasonable service fee of not more than one-half of the posted rate for such towing service as provided in subparagraph 6., for which a receipt shall be given, unless that person refuses to remove the vehicle which is otherwise unlawfully parked.

4. The rebate or payment of money or any other valuable consideration from the individual or firm towing or removing vehicles to the owners or operators of the premises from which the vehicles are towed or removed, for the privilege of removing or towing those vehicles, is prohibited.

5. Except for property appurtenant to and obviously a part of a single-family residence, and except for instances when notice is personally given to the owner or other legally authorized person in control of the vehicle that the area in which that vehicle is parked is reserved or otherwise unavailable for unauthorized vehicles and subject to being removed at the owner's or operator's expense, any property owner or lessor, or person authorized by the property owner or lessor, prior to towing or removing any vehicle from private property without the consent of the owner or other legally authorized person in control of that vehicle, must post a notice meeting the following requirements:

a. The notice must be prominently placed at each driveway access or curb cut allowing vehicular access to the property, within 5 feet from the public right-of-way line. If there are no curbs or access barriers, the signs must be posted not less than one sign for each 25 feet of lot frontage.

b. The notice must clearly indicate, in not less than 2-inch high, light-reflective letters on a contrasting background, that unauthorized vehicles will be towed away at the owner's expense. The words "tow-away zone" must be included on the sign in not less than 4-inch high letters.

c. The notice must also provide the name and current telephone number of the person or firm towing or removing the vehicles, if the property owner, lessor, or person in control of the property has a written contract with the towing company.

d. The sign structure containing the required notices must be permanently installed with the bottom of the sign not less than 4 feet above ground level and must be continuously maintained on the property for not less than 24 hours prior to the towing or removal of any vehicles.

e. The local government may require permitting and inspection of these signs prior to any towing or removal of vehicles being authorized.

6. Any person or firm that tows or removes vehi-

1115


cles and proposes to require an owner, operator, or person in control of a vehicle to pay the costs of towing and storage prior to redemption of the vehicle must file and keep on record with the local law enforcement agency a complete copy of the current rates to be charged for such services and post at the storage site an identical rate schedule and any written contracts with property owners, lessors, or persons in control of property which authorize such person or firm to remove vehicles as provided in this section.

7. Any person or firm towing or removing any vehicles from private property without the consent of the owner or other legally authorized person in control of the vehicles shall, on any trucks or other vehicles used in the towing or removal, have clearly indicated, in at least 2-inch letters, such person's or firm's name, address, and telephone number on the driver and passenger side doors.

8. Vehicle entry for the purpose of removing the vehicle shall be allowed with reasonable care on the part of the person or firm towing the vehicle. Such person or firm shall be liable for any damage occasioned to the vehicle if such entry is not in accordance with the standard of reasonable care.

9. When a vehicle has been towed or removed pursuant to this section, it must be released to its owner or custodian within one-half hour after requested. Any vehicle owner, custodian, or agent shall have the right to inspect the vehicle before accepting its return, and no release or waiver of any kind which would release the person or firm towing the vehicle from liability for damages noted by the owner or other legally authorized person at the time of the redemption may be required from any vehicle owner, custodian, or agent as a condition of release of the vehicle to its owner. A detailed, signed receipt showing the legal name of the company or person towing or removing the vehicle must be given to the person paying towing or storage charges at the time of payment, whether requested or not.

(b) These requirements shall be the minimum standards and shall not preclude enactment of additional regulations by any municipality or county.

(3) This section does not apply to law enforcement, firefighting, rescue squad, ambulance, or other emergency vehicles which are marked as such or to property owned by any governmental entity.

(4) When a person improperly causes a vehicle to be removed, such person shall be liable to the owner or lessee of the vehicle for the cost of removal, transportation, and storage; any damages resulting from the removal, transportation, or storage of the vehicle; attorneys' fees; and court costs.

History.-s. 1. ch. 76-83; s. 221. ch. 77-104; s. 2. ch. 79-206; s. 2. ch. 79-271; s. 2, ch. 79-410; s. 1. ch. 83-330.

715.10 Disposition of Personal Property Landlord and Tenant Act; short title.-Sections 715.10-715.111 may be cited as the "Disposition of Personal Property Landlord and Tenant Act."

History.-s. 11. ch. 83-151.

procedure for the disposition of personal property which remains on the premises after a tenancy has terminated or expired and the premises have been vacated by the tenant through eviction, surrender, abandonment, or otherwise.

(3) Sections 715.10-715.111 do not apply to property which exists for the purpose of providing utility services and is owned by a utility, whether or not such property is actually in operation to provide such utility services.

(4) If the requirements of ss. 715.10-715.111 are not satisfied, nothing in ss. 715.10-715.111 affects the rights and liabilities of the landlord, -the former tenant, or any other person.

History.-s. 11. ch. 83-151.

715.102 Definitions of terms used in ss. 715.10-715.111.-As used in ss. 715.10-715.111, unless some other meaning is clearly indicated, the term:

(1) "Landlord" means any operator, keeper, lessor, or sublessor of furnished or unfurnished premises for rent, or his agent or successor-in-interest.

(2) "Owner" means any person other than the landlord who has any right, title, or interest in personal property.

(3) "Premises" includes any common areas associated therewith.

(4) "Reasonable belief' means the actual knowledge or belief a prudent person should have without making an investigation, including any investigation of public records; except that, when the landlord has specific information indicating that such an investigation would more probably than not reveal pertinent information and the cost of such an investigation would be reasonable in relation to the probable value of the personal property involved, the term "reasonable belief' includes the actual knowledge or belief a prudent person would have if such an investigation were made.

(5) "Tenant" includes any paying guest, lessee, or sublessee of any premises for rent, whether a dwelling unit or not.

History.-s. 11. ch. 83-151.

715.103 Lost property.-Personal property which the landlord reasonably believes to have been lost shall be disposed of as otherwise provided by law. However, if the appropriate law enforcement agency or other government agency refuses to accept custody of property pursuant to chapter 705, the landlord may dispose of the property pursuant to ss. 715.10-715.111. The landlord is not liable to the owner of the property if he complies with this section and the other provisions of ss. 715.10-715.111.

History.-s. 11. ch. 83-151.

715.104 Notification of former tenant of personal property remaining on premises after tenancy has terminated.-

(1) When personal property remains on the 715.101 Application of ss. 715.10-715.111.- premises after a tenancy has terminated or expired (1) Sections 715.10-715.111 apply to all tenancies and the premises have been vacated by the tenant,

to which part I or part II of chapter 83 are applicable. through eviction or otherwise, the landlord shall give (2) Sections 715.10-715.111 provide an optional written notice to such tenant and to any other person

1116


the landlord reasonably believes to be the owner of the property.

(2) The notice shall describe the property in a manner reasonably adequate to permit the owner of the property to identify it. The notice may describe all or a portion of the property, but the limitation of liability provided by s. 715.11 does not protect the landlord from any liability arising from the disposition of property not described in the notice, except that a trunk, valise, box, or other container which is locked, fastened, or tied in a manner which deters immediate access to its contents may be described as such without describing its contents. The notice shall advise the person to be notified that reasonable costs of storage may be charged before the property is returned, and the notice shall state where the property may be claimed and the date before which the claim must be made. The date specified in the notice shall be a date not fewer than 10 days after the notice is personally delivered or, if mailed, not fewer than 15 days after the notice is deposited in the mail.

(3) The notice shall be personally delivered or sent by first-class mail, postage prepaid, to the person to be notified at his last known address and, if there is reason to believe that the notice sent to that address will not be received by that person, also delivered or sent to such other address, if any, known to the landlord where such person may reasonably be expected to receive the notice.

History.-s. 11, ch. 83-151.

715.105 Form of notice to former tenant.(1) A notice to the former tenant which is in sub

stantially the following form satisfies the requirements of s. 715.104:

Notice of Right to Reclaim Abandoned Property To: (Name of former tenant)

(Address of former tenant)

When you vacated the premises at (address of premises,

including room or apartment number. if any) , the following personal property remained: (insert description of personal proper

nL· You may claim this property at (address where property

may be claimed) .

Unless you pay the reasonable costs of storage and advertising, if any, for all the above-described property and take possession of the property which you claim, not later than {insert date not fewer than 10 days after not ice is personally delivered or if mailed not fewer than 15 days after notice is

deposited in the mail) ,this property may be disposed of pursuant to s. 715.109.

(Insert here the statement required by subsection (2) )

Dated:__ (Signature of landlord)

(Type or print name of landlord)

(Telephone number)

(Address)

(2) The notice set forth in subsection (1) shall also contain one of the following statements:

(a) "If you fail to reclaim the property, it will be sold at a public sale after notice of the sale has been given by publication. You have the right to bid on the property at this sale. After the property is sold and

the costs of storage, advertising, and sale are deducted, the remaining money will be paid over to the county. You may claim the remaining money at any time within 1 year after the county receives the money."

(b) "Because this property is believed to be worth less than $250, it may be kept, sold, or destroyed without further notice if you fail to reclaim it within the time indicated above."

History.-s. 11, ch. 83-151.

715.106 Form of notice to owner other than former tenant.-

(1) A notice which is in substantially the following form given to a person who is not the former tenant and whom the landlord reasonably believes to be the owner of any of the abandoned personal property satisfies the requirements of s. 715.104:

Notice of Right to Reclaim Abandoned Property To: (Name)

(Address)

When (name of former tenant) vacated the premises at (address of premises including room or apartment number if any) ,the

following personal property remained: (insert description

of personal property) •

If you own any of this property, you may claim it at (address where property may be claimed) • Unless you pay the

reasonable costs of storage and advertising, if any, and take possession of the property to which you are entitled, not later than (insert date not fewer than 10 days after notice is personally delivered or. if mailed not fewer than 15 days after notice is deposited in the mail) ,this property may be disposed of pursuant to s. 715.109.

(Insert here the statement required by subsection (2) )

Dated:__ (Signature of landlord)

(Type or print name of landlord)

{Telephone numberl

(Address)

(2) The notice set forth in subsection (1) shall also contain one of the following statements:

(a) "If you fail to reclaim the property, it will be sold at a public sale after notice of the sale has been given by publication. You have the right to bid on the property at this sale. After the property is sold and the costs of storage, advertising, and sale are deducted, the remaining money will be paid over to the county. You may claim the remaining money at any time within 1 year after the county receives the money."

(b) "Because this property is believed to be worth less than $250, it may be kept, sold, or destroyed without further notice if you fail to reclaim it within the time indicated above."

History.- s. 11, ch. 83-151 .

715.107 Storage of abandoned property. -The personal property described in the notice either shall be left on the vacated premises or be stored by the landlord in a place of safekeeping until the landlord either releases the property pursuant to s. 715.108 or disposes of the property pursuant to s. 715.109. The landlord shall exercise reasonable care in storing the property, but he is not liable to the ten-

1117


ant or any other owner for any loss unless caused by the landlord's deliberate or negligent act.

History.-s. 11, ch. 83·151.

715.108 Release of personal property.-(1) The personal property described in the notice

shall be released by the landlord to the former tenant or, at the landlord's option, to any person reasonably believed by the landlord to be its owner, if such tenant or other person pays the reasonable costs of storage and advertising and takes possession of the property not later than the date specified in the notice for taking possession.

(2) Where personal property is not released pursuant to subsection (1) and the notice has stated that the personal property will be sold at a public sale, the landlord shall release the personal property to the former tenant if he claims it prior to the time it is sold and pays the reasonable costs of storage, advertising, and sale incurred prior to the time the property is withdrawn from sale.

History.-s. 11, ch. 83·151.

715.109 Sale or disposition of abandoned property.-

(1) If the personal property described in the notice is not released pursuant to s. 715.108, it shall be sold at public sale by competitive bidding. However, if the landlord reasonably believes that the total resale value of the property not released is less than $250, he may retain such property for his own use or dispose of it in any manner he chooses. Nothing in this section shall be construed to preclude the landlord or tenant from bidding on the property at the public sale. The successful bidder's title is subject to ownership rights, liens, and security interests which have priority by law.

(2) Notice of the time and place of the public sale shall be given by an advertisement of the sale published once a week for two consecutive weeks in a newspaper of general circulation where the sale is to be held. The sale must be held at the nearest suitable place to that where the personal property is held or stored. The advertisement must include a description of the goods, the name of the former tenant, and the time and place of the sale. The sale must take place at least 10 days after the first publication. If there is no newspaper of general circulation where the sale is to be held, the advertisement must be posted at least 10 days before the sale in not less than six conspicuous places in the neighborhood of the proposed sale. The last publication shall be at least 5 days before the sale is to be held. Notice of sale may be published before the last of the dates specified for taking possession of the property in any notice given pursuant to s. 715.104.

(3) The notice of the sale shall describe the property to be sold in a manner reasonably adequate to permit the owner of the property to identify it. The notice may describe all or a portion of the property, but the limitation of liability provided by s. 715.11 does not protect the landlord from any liability arising from the disposition of property not described in the notice, except that a trunk, valise, box, or other container which is locked, fastened, or tied in a manner which deters immediate access to its contents

may be described as such without describing its contents.

(4) After deduction of the costs of storage, advertising, and sale, any balance of the proceeds of the sale which is not claimed by the former tenant or an owner other than such tenant shall be paid into the treasury of the county in which the sale took place not later than 30 days after the date of sale. The former tenant or other owner or other person having interest in the funds may claim the balance within 1 year from the date of payment to the county by making application to the county treasurer or other official designated by the county. If the county pays the balance or any part thereof to a claimant, neither the county nor any officer or employee thereof is liable to any other claimant as to the amount paid.

History.-s. 11, ch. 83·151.

715.11 Nonliability of landlord after disposition of property.-

(1) Notwithstanding the provisions of s. 715.101, after the landlord releases to the former tenant property which remains on the premises after a tenancy is terminated, the landlord is not liable with respect to that property to any person.

(2) After the landlord releases property pursuant to s. 715.108 to a person who is not the former tenant and who is reasonably believed by the landlord to be the owner of the property, the landlord is not liable with respect to that property to:

(a) Any person to whom notice was given pursuant to s. 715.104; or

(b) Any person to whom notice was not given pursuant to s. 715.104 unless such person proves that, prior to releasing the property, the landlord believed or reasonably should have believed that such person had an interest in the property and also that the landlord knew or should have known upon reasonable investigation the address of such person.

(3) Where property is disposed of pursuant to s. 715.109, the landlord is not liable with respect to that property to:

(a) Any person to whom notice was given pursuant to s. 715.104; or

(b) Any person to whom notice was not given pursuant to s. 715.104 unless such person proves that, prior to disposing of the property pursuant to s. 715.109, the landlord believed or reasonably should have believed that such person had an interest in the property and also that the landlord knew or should have known upon reasonable investigation the address of such person.

History.-s. 11, ch. 83·151.

715.111 Assessing costs of storage.-(1) Costs of storage for which payment may be re

quired under ss. 715.10-715.111 shall be assessed in the following manner:

(a) When a former tenant claims property pursuant to s. 715.108, he may be required to pay the reasonable costs of storage for all the personal property remaining on the premises at the termination of the tenancy, which costs are unpaid at the time the claim is made.

(b) When an owner other than the former tenant

1118


claims property pursuant to s. 715.108, he may be required to pay the reasonable costs of storage for only the property in which he claims an interest.

(2) In determining the costs to be assessed under subsection (1), the landlord may not charge more than one person for the same costs.

(3) If the landlord stores the personal property on the premises, the costs of storage shall be the fair rental value of the space reasonably required for such storage for the term of the storage.

History.-s. 11, ch. 83-151.

1715.301 Offer of mobile home park for sale; right of tenants to purchase.-

(1) If a mobile home park owner offers a mobile home park for sale, he shall notify the tenants of the mobile home park of his offer, stating the price and the terms and conditions of sale. The tenants by and through the association defined in s. 715.302 shall have the right to purchase the park, provided the tenants meet the price and terms and conditions of the mobile home park owner by executing a contract with the owner within 45 days, unless agreed to otherwise, from the date of mailing of the notice, and provided they have complied with ss. 715.302 and 715.303. If a contract between the owner and the association is not executed within such 45-day period, then, unless the owner thereafter elects to offer the park at a price lower than the price specified in the owner's notice to the tenants, the owner will have no further obligations under this subsection, and the only obligation of the owner shall be as set forth in subsection (2). If the owner thereafter elects to offer the park at a price lower than the price specified in the owner's notice to the tenants, the tenants by and through the association shall have an additional 10 days to meet the price and terms and conditions of the owner by executing a contract. As used in this subsection, the term "offer" means any solicitation by the owner to the general public.

(2) If a mobile home park owner receives a bona fide offer to purchase the park which he intends to consider or with respect to which he intends to make a counter offer, his only obligation shall be to notify the tenants that he has received an offer and disclose the price and material terms and conditions upon which he would consider selling the park and consider any offer made by the tenants, provided the tenants have complied with ss. 715.302 and 715.303. The park owner shall be under no obligation to sell to the tenants or to interrupt or delay other negotiations, and the park owner shall be free at any time to execute a contract for the sale of the park to a party or parties other than the tenants or the association.

(3) As used in subsections (1) and (2), the term "notify" means to place a notice in the United States mail addressed to the tenant's last known mailing address in the mobile home park. Each such notice shall be deemed to have been given upon the deposit thereof in the United States mail.

(4) A mobile home park owner may, at any time, record in the official records of the county where the park is situated an affidavit in which the park owner certifies that:

(a) With reference to an offer by the owner for

the sale of such park, the owner has complied with the provisions of subsection (1);

(b) With reference to an offer received by the owner for the purchase of such park, or with reference to a counter offer which the owner intends to make or has made, for the sale of such park, the owner has complied with the provisions of subsection (2);

(c) Notwithstanding the owner's compliance with the provisions of either subsection (1) or subsection (2), no contract has been executed for the sale of such park between the owner and the association;

(d) The provisions of subsections (1) and (2) are inapplicable to a particular sale or transfer of such park by the owner, and compliance with such subsections is not required; or

(e) A particular sale or transfer of such park is exempted from the provisions of this section.

Any party acquiring an interest in a mobile home park, and any and all title insurance companies and attorneys preparing, furnishing, or examining any evidence of title, have the absolute right to rely on the truth and accuracy of all statements appearing in such affidavit, and are under no obligation to inquire further as to any matter or fact relating to the owner's compliance with the provisions of this section. It is the purpose and intention of this subsection to preserve the marketability of titles to mobile home parks; and, accordingly, the provisions of this subsection shall be liberally construed in order that purchasers and encumbrancers may rely on the record titles to mobile home parks.

(5) This section does not apply to any of the following sales or transfers:

(a) Any sale or transfer to a person who would be included within the table of descent and distribution if the park owner were to die intestate;

(b) Any transfer by gift, devise, or operation of law'

(~) Any sale or transfer by a corporation to an "affiliate," the term "affiliate" meaning for this purpose any shareholder of the transferring corporation; any corporation or entity owned or controlled, directly or indirectly, by the transferring corporation; or any other corporation or entity owned or controlled, directly or indirectly, by any shareholder of the transferring corporation;

(d) Any sale or transfer by a partnership to any of its partners;

(e) Any conveyance of an interest in a mobile home park incidental to the financing of such park;

(f) Any conveyance resulting from the foreclosure of a mortgage, deed of trust, or other instrument encumbering a mobile home park, or any deed given in lieu of such foreclosure;

(g) Any sale or transfer between or among joint tenants or tenants-in-common owning a mobile home park; or

(h) Any exchange of a mobile home park for other real property, whether or not such exchange also involves the payment of cash or other boot.

(6) This section does not apply to the purchase of a mobile home park by a governmental entity having the power of eminent domain.

(7) In the event that the association acquires the

1119


mobile home park and intends to reconvey a portion or portions of the property acquired to members of the association, the association shall record copies of its articles, its bylaws, and any additional covenants, restrictions, or declarations of servitude affecting the property with the clerk of the circuit court prior to the conveyance of any portion of the property to an individual member of the association.

History.-s. 3, ch. 83·219. 'Note.-Section 5, ch. 83·219, provides that this section does not apply to the

sale of a mobile home park when the owner and purchaser have entered into a contract for such sale prior to June 24, 1983, or have been involved in good faith negotiation prior to that date.

715.302 Homeowners' associations.-In order to exercise the rights provided in s. 715.301, the owners of the mobile homes 'in a mobile home park shall form an association in compliance with this section and s. 715.303, which shall be a corporation for profit or a corporation not for profit, and for which written consent to be shareholders or members has been given in writing by owners of at least two-thirds of the mobile homes. The association shall have no members or shareholders who are not bona fide residents of the mobile home park. The articles of incorporation of such homeowner's association shall provide that:

(1) The association has the power to negotiate for, acquire, and operate the mobile home park on behalf of the residents. The articles of incorporation shall further provide for the conversion of the mobile home park once acquired to a condominium or to a cooperative form of ownership. Upon acquisition of the property, in the case of conversion to condominium, the association shall be the entity which creates a condominium or offers condominium parcels for sale or lease in the ordinary course of business or, in the case of conversion to cooperative, the entity which owns the record interest in the property and which is responsible for the operation of property.

(2) The association may contract, sue, or be sued with respect to the exercise or nonexercise of its powers. For these purposes, the powers of the association include, but are not limited to, the maintenance, management, and operation of the park property. The association may institute, maintain, settle, or appeal actions or hearings in its name on behalf of all owners concerning matters of common interest, including, but not limited to, the common property; structural components of a building or other improvements; mechanical, electrical, and plumbing elements serving the park property; and protests of ad valorem taxes on commonly used facilities. If the association has the authority to maintain a class action, the association may be joined in an action as representative of that class with reference to litigation and disputes involving the matters for which the association could bring a class action. Nothing in this subsection limits any statutory or common-law right of any individual owner or class of owners to bring any action which may otherwise be available.

(3) The powers and duties of the association include those set forth in this section and in the articles of incorporation and bylaws, and any recorded declarations or restrictions encumbering the park property, if not inconsistent with this chapter.

(4) The association has the power to make and collect assessments and to lease, maintain, repair, and replace the common areas.

(5) The association shall maintain accounting records in the county where the property is located, according to good accounting practices. The records shall be open to inspection by association members or their authorized representatives at reasonable times, and written summaries of such records shall be supplied at least annually to such members or their authorized representatives. The failure of the association to permit inspection of the accounting records of the association by members or their authorized representatives entitles any person prevailing in an enforcement action to recover reasonable attorney's fees from the person in control of the books and records who, directly or indirectly, knowingly has denied access to the books and records for inspection. The records shall include, but shall not be limited to:

(a) A record of all receipts and expenditures. (b) An account for each member, designating the

name and current mailing address of the member, the amount of each assessment, the dates and amounts in which the assessments come due, the amount paid upon the account, and the balance due.

(6) The association has the power to purchase lots in the park and to acquire and hold, lease, mortgage, and convey them.

(7) The association shall use its best efforts to obtain and maintain adequate insurance to protect the association and the park property. A copy of each policy of insurance in effect shall be made available for inspection by owners at reasonable times.

(8) The association has the authority, without the joinder of any unit oyvners, to modify or move any easement for ingress and egress or for the purposes of utilities if the easement constitutes part of, or crosses, the park property. This subsection does not authorize the association to modify or move any easement created in whole or in part for the use or benefit of anyone other than the members, or any easement crossing the property of anyone other than the members, without their consent or approval as required by law or the instrument creating the easement. Nothing in this subsection affects the rights of ingress or egress of any member of the association.

History.-s. 1, ch. 83·219. INote.- The words "in 8 mobile horne park" were inserted by the editors.

715.303 Bylaws of the homeowners' association.-In order for the mobile home association to exercise the rights provided in s. 715.301:

(1) The bylaws of the mobile home association shall provide that the administration and operation of the association will be governed by the bylaws.

(2) The bylaws of the mobile home association shall provide for the following and, if they do not, they shall be deemed to include the following provisions:

(a) The form of administration of the association shall be described, providing for the titles of the officers and for a board of administration and specifying the powers, duties, manner of selection and removal, and compensation, if any, of officers and board members. Unless otherwise provided in the bylaws, the board of administration shall be composed of five

1120


members. The board of administration shall have a president, secretary, and treasurer, who shall perform the duties of those offices customarily performed by officers of corporations; and these officers shall serve without compensation and at the pleasure of the board of administration. The board of administration may appoint and designate other officers and grant them those duties it deems appropriate.

(b) A majority of the members shall constitute a quorum. A decision shall be made by a majority of members represented at a meeting at which a quorum is present. In addition, provision shall be made in the bylaws for definition and use of proxy. Any proxy given shall be effective only for the specific meeting for which originally given and any lawfully adjourned meetings thereof. In no event shall any proxy be valid for a period longer than 90 days after the date of the first meeting for which it was given. Every proxy shall be revocable at any time at the pleasure of the member executing it.

(c) Meetings of the board of administration shall be open to all members, and notice of any meeting shall be posted in a conspicuous place upon the park property at least 48 hours in advance, except in an emergency. Notice of any meeting in which assessments against members are to be considered for any reason shall specifically contain a statement that assessments will be considered and a statement of the nature of any such assessments.

(d) Members shall meet at least once each calendar year, and the meeting shall be the annual meeting. All members of the board of administration shall be elected at the annual meeting unless the bylaws provide for staggered election terms or for the election of such board members at another meeting. The bylaws may not restrict any member desiring to be a candidate for board membership from being nominated from the floor. The bylaws shall provide the method for calling the members to meetings, including annual meetings. The method shall provide at least 14 days' written notice to each member in advance of the meeting and require the posting in a conspicuous place on the park property of a notice of the meeting at least 14 days prior to the meeting. Unless a member waives in writing the right to receive notice of the annual meeting by certified mail, the notice of the annual meeting shall be sent by certified mail to each member, and the mailing constitutes notice. These meeting requirements do not prevent members from waiving notice of meetings or from acting by written agreement without meetings, if allowed by the bylaws.

(e) Minutes of all meetings of members and of the board of administration shall be kept in a businesslike manner and shall be available for inspection by members, or their authorized representatives, and board members at reasonable times. The association shall retain these minutes for a period of not less than 7 years.

(f) The share or percentage of, and manner of sharing, expenses for each member shall be stated.

(g) The board of administration shall mail a meeting notice and copies of the proposed annual budget of expenses to the members not less than 30 days prior to the meeting at which the budget will be considered. If the bylaws provide that the budget may be adopted by the board of administration, the members shall be given written notice of the time and place at which the meeting of the board of administration to consider the budget will be held. The meeting shall be open to the members.

(h) The board of administration may, in any event, propose a budget to the members at a meeting of members, or by writing; and, if the budget or proposed budget is approved by the members at the meeting or by a majority of their whole number in writing, that budget may not thereafter be examined by the members.

(i) The manner of collecting from the members their shares of the expenses for maintenance of the park property shall be stated. Assessments shall be made against members not less frequently than quarterly, in amounts no less than the amounts which are required to provide funds in advance for payments of all of the anticipated current operating expenses, and for all of the unpaid operating expense previously incurred.

(j) The method by which the bylaws may be amended consistent with the provisions of this 'section shall be stated. If the bylaws fail to provide a method of amendment, the bylaws may be amended if the amendment is approved by not less than two-thirds of the members. No bylaw may be revised or amended by reference to its title or number only.

(k) The officers and directors of the association have a fiduciary relationship to the members.

(1) Any member of the board of administration may be recalled and removed from office with or without cause by the vote or agreement in writing by a majority of all members. A special meeting of the members to recall a member or members of the board of administration may be called by 10 percent of the members giving notice of the meeting as required for a meeting of members, and the notice shall state the purpose of the meeting.

(3) The bylaws may provide the following: (a) A method of adopting and of amending ad

ministrative rules and regulations governing the details of the operation and use of the park property.

(b) Restrictions on, and requirements respecting, the use and maintenance of mobile homes located within the park, and the use of the park property, not inconsistent with the articles of incorporation.

(c) Other provisions not inconsistent with this chapter or with other documents governing the park property or mobile homes located therein.

(4) No amendment may change the proportion or percentage by which members share in the expenses unless all the members approve the amendment.

History.-s. 2, ch. 83-219. 'Note.-The word "section" was substituted by the editors for the word

"part."

1121

Ch.716 ESCHEATS F.S.1983

CHAPTER 716

ESCHEATS

716.01 716.02

716.03

716.04 716.05

716.06 716.07

Declaration of policy. Escheat of funds in the possession of federal

agencies. Department to institute proceedings to re

cover escheated property. Jurisdiction. Money recovered to be paid into State Trea

sury. Public records. Recovery of escheated property by claimant.

716.01 Declaration of policy.-It is hereby declared to be the policy of the state, while protecting the interests of the owners thereof, to possess all unclaimed and abandoned money and property for the benefit of all the people of the state, and this law shall be liberally construed to accomplish such purpose.

Hi.tory.-s. 1, ch. 24333, 1947.

716.02 Escheat of funds in the possession of federal agencies.-All property within the provisions of subsections (I), (2), (3) , (4) and (5), are declared to have escheated, or to escheat, including all principal and interest accruing thereon, and to have become the property of the state.

(1) All money or other property which has remained in, or has been deposited in the custody of, or under the control of, any court of the United States, in and for any district within this state, or which has been deposited with and is in the custody of any depository, registry, clerk or other officer of such court, or the United States treasury, which money or other property the rightful owner or owners thereof, either:

(a) Has been unknown for a period of 5 or more consecutive years; or,

(b) Has died, without having disposed thereof, and without having left heirs, next of kin or distributees, or

(c) Has made no demand for such money or other property for 5 years;

are declared to have escheated, or to escheat, together with all interest accrued thereon, and to have become the property of the state.

(2) After June 16, 1947, all money or other property which has remained in, or has been deposited in the custody of, or under the control of, any court of the United States, in and for any district within this state, for a period of 4 years, the rightful owner or owners of which, either:

(a) Shall have been unknown for a period of 4 years; or,

(b) Shall have died without having disposed thereof, and without having left or without leaving heirs, next of kin or distributees; or,

(c) Shall have failed within 4 years to demand the payment or delivery of such funds or other property;

is hereby declared to have escheated, or to escheat, together with all interest accrued thereon, and to have become the property of the state.

(3) All money or other property which has remained in, or has been deposited in the custody of, or under the control of any officer, department or agency of the United States for 5 or more consecutive years, which money or other property had its situs or source in this state, except as hereinafter provided in subsection (4), the sender of which is unknown, or who sent the money or other property for an unknown purpose, or money which is credited as "unknown," and which said governmental agency is unable to credit to any particular account, or the sender of which has been unknown for a period of 5 or more consecutive years; or when known, has died without having disposed thereof, and without leaving heirs, next of kin or distributees, or for any reason is unclaimed from such governmental agency.

(4) In the event any money is due to any resident of this state as a refund, rebate or tax rebate from the United States Commissioner of Internal Revenue, the United States Treasurer, or other governmental agency or department, which said resident will, or is likely to have his rights to apply for and secure such refund or rebate barred by any statute of limitations or, in any event, has failed for a period of 1 year after said resident could have filed a claim for said refund or rebate, the Department of Banking and Finance is hereby appointed agent of such resident to demand, file and apply for said refund or rebate, and is hereby appointed to do any act which a natural person could do to recover said money, and it is hereby declared that when the department files said application or any other proceeding to secure said refund or rebate, its agency is coupled with an interest in the money sought and money recovered.

(5) It is the purpose of this chapter to include all funds or other property in the possession of the government of the United States, and of its departments, officers, and agencies, which property has its situs in this state or belonged to a resident thereof, and not to limit the application of this chapter by the naming of any particular agency. This chapter shall include all funds held in the Veterans' Administration, Comptroller of Currency, United States Treasury, Department of Internal Revenue, federal courts, registry of federal courts, and such evidences of indebtedness as adjusted service bonds, old matured debts issued prior to 1917, unclaimed and interest thereon, postal savings bonds, liberty bonds, victory notes, treasury bonds, treasury notes, certificates of indebtedness, treasury bills, treasurer's savings certificates, bonuses and adjusted compensation, allotments, and all unclaimed refunds or rebates of whatever kind or nature, which are subjects of escheat, under the terms of this chapter. Provided, however, that nothing in this chapter shall be construed to mean that any refunds due ratepayers under order of any court of the United States shall become the property of the state.

Hi8tory.-s. 2, ch. 24333, 1947; s. 11, ch. 25035, 1949; SS. 12, 35, ch. 69-106; s. 1, ch. 70-405.

716.03 Department to institute proceedings

1122

F.S.1983 ESCHEATS Ch.716

to recover escheated property.-When there exists, or may exist, escheated funds or property under this chapter, the Department of Banking and Finance shall demand or institute proceedings in the name of the state for an adjudication that an escheat to the state of such funds or property has occurred; and shall take appropriate action to recover such funds or property.

History.-s. 3, ch. 24333, 1947; s. 11, ch. 25035, 1949; ss. 12, 35, ch. 69-106.

716.04 Jurisdiction.-Whenever the Department of Banking and Finance is of the opinion an escheat has occurred, or shall occur, of any money or other property deposited in the custody of, or under the control of, any court of the United States, in and for any district within the state, or in the custody of any depository, registry or clerk or other officer of such court, or the treasury of the United States, it shall cause to be filed a complaint in the circuit court of Leon County, or in any other court of competent jurisdiction, to ascertain if any escheat has occurred, and to cause said court to enter a judgment or decree of escheat in favor of the state, with costs, disbursements, and attorney fee.

History.-s. 4, ch. 24333, 1947; 88. 12,35, ch. 69-106.

716.05 Money recovered to be paid into State Treasury.-When any funds or property which has escheated within the meaning of this chapter has been recovered by the Department of Banking and Finance, the department shall first pay all costs incident to the collection and recovery of such funds or property and shall promptly deposit the remaining balance of such funds or property with the Treasurer of the state, to be distributed in accordance with law.

History.-s. 5, ch. 24333, 1947; ss. 12, 35, ch. 69-106; s. 153, ch. 83-216.

716.06 Public records.-All records in the office of the State Treasurer or the Department of Banking and Finance relating to federal funds, pursuant to this chapter, shall be public records.

History.-s. 6, ch. 24333, 1947; ss. 12, 35, ch. 69-106.

716.07 Recovery of escheated property by claimant.-

(1) Any person who claims any property, funds or money delivered to the State Treasurer under this chapter, shall, within 5 years from the date of receipt of said property, funds or money, file a verified claim with the State Treasurer, setting forth the facts upon which said party claims to be entitled to recover said money or property. The State Treasurer, within 5 days after receipt of such claim, shall submit said verified claim or a verified copy thereof, to the Department of Banking and Finance. All claims made for recovery of property, funds or money, not filed within 5 years from the date that said property, funds or money is received by the State Treasurer, shall be forever barred, and the Treasurer of the state shall be without power to consider or determine any claims so made by any claimant after 5 years from the date that the property, funds or money was received by the State Treasurer.

(2) The Comptroller shall approve or disapprove the claim. If the claim is approved, the funds, money, or property of the claimant, less any expenses and costs which shall have been incurred by the state in securing the possession of said property, as provided by this chapter, shall be delivered to him by the State Treasurer upon warrant issued according to law and his receipt taken therefor. If the court finds, upon any judicial review, that the claimant is entitled to the property, money, or funds claimed, and shall render judgment in his or its favor, declaring that the claimant is entitled to said property, funds, or money, then upon presentation of said judgment or a certified copy thereof to the State Comptroller, said Comptroller shall draw his warrant for the amount of money stated in said judgment, without interest or cost to the state, less any sum paid by the state as costs or expenses in securing possession of said property, funds, or money. When payment has been made to any claimant, no action thereafter shall be maintained by any other claimant against the state or any officer thereof, for or on account of said money, property, or funds.

History.-s. 7, ch. 24333, 1947; s. 30, ch. 63-559; ss. 12, 35, ch. 69-106; s. 7, ch. 78-95.

1123

Ch.717 DISPOSITION OF UNCLAIMED PROPERTY F.S.1983

CHAPTER 717

DISPOSITION OF UNCLAIMED PROPERTY

717.01 717.02 717.03

717.04

717.05 717.06

717.07

717.08 717.09

717.10

717.11

717.12 717.13

717.131

717.14

717.15

717.16 717.17 717.18 717.19 717.195 717.20

717.21 717.22 717.23 717.24 717.25

717.27 717.28 717.29 717.30

Short title. Definitions. Property held by banking or financial orga

nizations. Unclaimed funds held by insurance corpo

rations. Deposits and refunds held by utilities. Undistributed dividends, distribution of

business associations, stock or certificate of ownership.

Property of business associations and banking or financial organizations held in course of dissolution.

Property held by fiduciaries. Property held by state courts and public

officers and agencies. Miscellaneous personal property held for

another person. Reciprocity for property presumed aban

doned or escheated under the laws of another state.

Report of abandoned property. Notice and publication of lists of aban

doned property. Petition for administrative declaration of

abandoned property. Payments or delivery of abandoned prop

erty. Relief from liability by payment or deliv-

ery. Income accruing after payment or delivery. Periods of limitation not a bar. Sale of abandoned property. Deposit of funds. Administration of abandoned property. Claim for abandoned property paid or de-

livered. Determination of claims. Judicial action upon determination. Election to take payment or delivery. Examination of records. Proceeding to compel delivery of aban-

doned property. Penalties. Rules and regulations. Effect of laws of other states. Repeal.

717.01 Short title.-This act may be cited as the "Florida Disposition of Unclaimed Property Act."

History.-s. 31, ch. 61-10.

717.02 Definitions.-As used in this act, unless the context otherwise requires:

(1) "Banking organization" means any state or national bank, international banking entity or other similar entity, trust company, savings bank, industrial bank, land bank, or safe deposit company, whether organized or operated under state or federal law.

(2) "Business association" means any corporation, joint stock company, business trust, or partnership or any association for business purposes of two or more individuals.

(3) "Financial organization" means any savings and loan association, building and loan association, credit union, cooperative bank, or investment company, whether organized or operated under state or federallaw.

(4) "Holder" means any person in possession of property subject to this act belonging to another, or who is trustee in case of a trust, or indebted to another on an obligation subject to this act.

(5) "Insurance corporation" means any association or corporation transacting the business of insurance on the lives of persons or insurance appertaining thereto, including, but not by way of limitation, endowments and annuities; disability, accident, and health insurance; and property, casualty, and surety insurance; as all said terms are defined in part V of chapter 624.

(6) "Owner" means a depositor, or a person entitled to receive the funds as reflected on the records of the bank or financial organization, in case of a deposit, a beneficiary in case of a trust, a creditor, claimant, or payee in case of other choses in action, or any person having a legal or equitable interest in property subject to this act, or his legal representative.

(7) "Person" means any individual, business association, government or political subdivision, public corporation, public authority, estate, trust, two or more persons having a joint or common interest, or other legal or commercial entity.

(8) "Utility" means any person who owns or operates within this state, for public use, any plant, equipment, property, franchise, or license for the transmission of communications; for the production, storage, transmission, sale, delivery, or furnishing of electricity, water, steam, or gas; or for the transportation of persons or property.

(9) "Department" means the Department of Banking and Finance.

History.-s. I , ch. 61-10; ss. 12, 35, ch. 69-106; s. 279, ch. 71-377; s. I, ch. 77-236; s. I, ch. 80-84.

717.03 Property held by banking or financial organizations.-The following property held or owing by a banking or financial organization is presumed abandoned:

(1) Any demand, savings, or matured time deposit made with a banking organization, together with any interest or dividends thereon, excluding any charges that may lawfully be withheld, unless the owner has, within 10 years:

(a) Increased or decreased the amount of the deposit, or presented the passbook or other similar evidence of the deposit for the crediting of interest;

(b) Corresponded in writing with the banking organization concerning the deposit; or

(c) Otherwise indicated an interest in the deposit

1124

F.S.1983 DISPOSITION OF UNCLAIMED PROPERTY Ch.717

as evidenced by a memorandum on file with the banking organization.

(2) Any funds paid toward the purchase of shares or other interest in a financial organization, or any deposit made therewith, and any interest or dividends thereon, excluding any charges that may lawfully be withheld, unless the owner has, within 10 years:

(a) Increased or decreased the amount of the funds or deposit, or presented an appropriate record for the crediting of interest or dividends;

(b) Corresponded in writing with the financial organization concerning the funds or deposit; or

(c) Otherwise indicated an interest in the funds or deposit as evidenced by a memorandum on file with the financial organization.

(3) Any sum payable on certified checks or on written instruments on which a banking or financial organization is directly liable, including, by way of illustration but not of limitation, certificates of deposit, drafts, and traveler's checks, that, with the exception of traveler's checks, has been outstanding for more than 10 years from the date it was payable or from the date of its issuance if payable on demand or, in the case of traveler's checks, has been outstanding for more than 15 years from the date of issuance, unless the owner has within 10 years, or within 15 years in the case of traveler's checks:

(a) Corresponded in writing with the banking or financial organization concerning it; or

(b) Otherwise indicated an interest as evidenced by a memorandum on file with the banking or financial organization.

(4) Any funds or other personal property, tangible or intangible, removed from a safe-deposit box, or agency or collateral deposit box, in this state on which the lease or rental period has expired due to nonpayment of rental charges or other reason, or any surplus amounts arising from the sale thereof pursuant to law, that have been unclaimed by the owner for more than 7 years from the date on which the lease or rental period expired. History.~s. 2, ch. 61-10; s. 2, ch. 77-236; s. 2, ch. 80-84.

717.04 Unclaimed funds held by insurance corporations.-

than 7 years after the moneys become due and payable, as established from the records of the corporation, under any life or endowment insurance policy or annuity contract which has matured or terminated. A life insurance policy not matured by actual proof of the death of the insured is deemed to be matured, and the proceeds thereof are deemed to be due and payable, if such policy was in force when the insured attained the limiting age under the mortality table on which the reserve is based, unless the person appearing entitled thereto has within the preceding 7 years:

1. Assigned, readjusted, or paid premiums on the policy, or subjected the policy to loan; or

2. Corresponded in writing with the life insurance corporation concerning the policy.

(2) INSURANCE OTHER THAN LIFE INSURANCE.-

(a) Unclaimed funds as defined in subsection (1), held and owing by a fire, casualty or surety insurance corporation shall be presumed abandoned if the last known address according to the records of the corporation, of the person entitled to the funds is within this state. If a person other than the insured, the principal, or the claimant is entitled to the funds and no address of such person is known to the corporation or if it is not definite and certain from the records of the corporation what person is entitled to the funds, it is presumed that the last known address of the person entitled to the funds is the same as the last known address of the insured, the principal, or the claimant according to the records of the corporation.

(b) "Unclaimed funds," as used in subsection (2), means all moneys held and owing by any fire, casualty, or surety insurance corporation, unclaimed and unpaid for more than 7 years after the moneys become due and payable, as established from the records of the corporation, either to an insured, a principal, or a claimant under any fire, casualty, or surety insurance policy or contract.

(3) Moneys otherwise payable according to the records of the corporation are deemed due and payable although the policy or contract has not been surrendered as required. History.~s. 3, ch. 61-10; s. 3, ch. 77-236.

(1) LIFE INSURANCE.- 717.05 Deposits and refunds held by utili· (a) Unclaimed funds, as defined in this subsec- ties.-The following funds held or owing by any util

tion, held and owing by a life insurance corporation ity are presumed abandoned: shall be presumed abandoned if the last known ad- (1) Any deposit made by a subscriber with a utilidress, according to the records of the corporation, of ty to secure payment for, or any sum paid in advance the person entitled to the funds is within this state. If for, utility services to be furnished in this state, less a person other than the insured or annuitant is enti- any lawful deductions, together with any interest tled to the funds and no address of such person is thereon, that has remained unclaimed by the person known to the corporation or if it is not definite and appearing on the records of the utility entitled therecertain from the records of the corporation what per- to for more than 7 years after the termination of the son is entitled to the funds, it is presumed that the services for which the deposit or advance payment last known address of the person entitled to the was made. funds is the same as the last known address of the in- (2) Any sum which a utility has been ordered to sured or annuitant according to the records of the refund and which was received for utility services corporation. rendered in this state, together with any interest

(b) "Unclaimed funds," as used in subsection (1), thereon, less any lawful deductions, that has remeans all moneys held and owing by any life insur- mained unclaimed by the person appearing on the ance corporation, unclaimed and unpaid for more records of the utility entitled thereto for more than 7

1125


years after the date it became payable, in accordance with the final determination or order providing for the refund.

(3) Any sum paid to a utility for a utility service, which service has not, within 7 years of such payment, been rendered.

Hi8tory.-s. 4, ch. 61·10; s. 4, ch. 77-236.

717.06 Undistributed dividends, distribution of business associations, stock or certificate of ownership.-

(1) Any dividend, profit, distribution, interest, payment on principal, or other sum held or owing by a business association for or to a shareholder, certificateholder, member, bondholder, or other security holder, or a participating patron of a cooperative, who has not claimed it, or corresponded in writing with the business association concerning it, within 7 years after the date prescribed for payment or delivery, is presumed abandoned if:

(a) The records of the business association indicate that the last known address of the apparent owner is in this state.

(b) No address of the apparent owner appears on the records of the business association and:

1. The last known address of the apparent owner is in this state; or

2. The business association is domiciled in this state and has not previously paid the property to the state of the last known address of the apparent owner.

(c) The last known address of the apparent owner, as shown on the records of the holder, is in a state designated by regulation adopted by the department as a state that does not provide by law for the escheat or other disposition of such property to the state, and the business association is domiciled in this state.

(d) The last known address of the apparent owner, as shown on the records of the business association, is in a foreign nation and the business association is domiciled in this state.

(2) When any dividend, profit, distribution, interest, payment on principal, or other sum under subsection (1) is presumed abandoned, the intangible interest in the business association, as evidenced by the stock records or membership records of the association, pursuant to which the sum in subsection (1) became owing to the owner, shall be presumed abandoned at the same time the sum is presumed abandoned. With respect to such interest, the business association shall be deemed the holder.

(3) Any dividend or stock split or exchange, or any distribution held and owing to a person at the time the stock or other security to which it attaches is presumed abandoned, shall also be presumed abandoned as of the same time.

Hi8tory.-s. 5, ch. 61-10; s. 4, ch. 77-236.

717.07 Property of business associations and banking or financial organizations held in course of dissolution.-All intangible personal property distributable in the course of a voluntary or involuntary dissolution of a corporation, business association, banking organization, credit union, or other financial organization organized under the laws of, or created in, this state that is unclaimed by the own-

er within 7 years after the date for final distribution, is presumed abandoned.

Hi.tory.-s. 6, ch. 61-10; s. 4, ch. 77-236.

717.08 Property held by fiduciaries.-All intangible personal property, and any income or increment thereon, held in a fiduciary capacity for the benefit of another person is presumed abandoned unless the owner has, within 7 years after it becomes payable or distributable, increased or decreased the principal, accepted payment of principal or income, corresponded in writing concerning the property, or otherwise indicated an interest as evidenced by a memorandum on file with the fiduciary, if:

(1) The property is held by a banking organization or a financial organization, or by a business association organized under the laws of, or created in, this state;

(2) The property is held by a banking organization, financial organization, or business association not located in this state, and the records of such entity indicate that the last known address of the person entitled thereto is in this state; or

(3) The property is held by any other person. Hi.tory.-s. 7, ch. 61-10; s. 4, ch. 77-236; s. 3, ch. BO-84.

cf.-s. 733.816 Disposition of unclaimed funds held by personal representatives.

717.09 Property held by state courts and public officers and agencies.-All intangible personal property held for the owner by any court, public corporation, public authority, or public officer of this state, or a political subdivision thereof, that has remained unclaimed by the owner for more than 7 years is presumed abandoned.

Hi8tory.-s. 8, ch. 61-10; s. 4, ch. 77-236.

717.10 Miscellaneous personal property held for another person.-All intangible personal property, not otherwise covered by this act, including any income or increment thereon and deducting any lawful charges, that has remained unclaimed by the owner for more than 7 years after it became payable or distributable is presumed abandoned.

Hi.tory.-s. 9, ch. 61-10; s. 4, ch. 77-236; s. 4, ch. BO-84.

717.11 Reciprocity for property presumed abandoned or escheated under the laws of another state.-

(1) If specific property which is subject to the provisions of this act is held for or owed or distributable to an owner whose last known address is in another state by a holder who is subject to the jurisdiction of that state, the specific property is not presumed abandoned in this state and subject to this act if:

(a) It may be claimed as abandoned or escheated under the laws of such other state; and

(b) The laws of such other state make reciprocal provision that similar specific property is not presumed abandoned or escheatable by such other state when held for or owed or distributable to an owner whose last known address is within this state by a holder who is subject to the jurisdiction of this state.

(2) The department may enter into a reciprocal

1126


agreement with another state or an official thereof to provide information needed to enable either state to determine what unclaimed property it may be entitled to escheat.

Hi.tory.-s. 10, ch. 61·10; s. 5, ch. 80-84.

717.12 Report of abandoned property.-(1) Every person holding funds or other property,

tangible or intangible, presumed abandoned under this act shall annually report to the Department of Banking and Finance with respect to the property, as hereinafter provided.

(2) The report shall be verified and shall include: (a) The name, if known, and last known address,

if any, of each person appearing from the records of the holder to be the owner of any property of the value of $25 or more presumed abandoned under this act·

(h) In case of unclaimed funds of a life insurance corporation, the full name of the insured or annuitant and his last known address according to the life insurance corporation's records;

(c) The nature and identifying number, if any, or description of the property and the amount appearing from the records to be due, except that items of value under $25 each may be reported in aggregate;

(d) The date when the property became payable, demandable, or returnable, and the date of the last transaction with the owner with respect to the property; and

(e) Other information which the department prescribes by rule as necessary for the administration of this act.

(3) If the person holding property presumed abandoned is a successor to other persons who previously held the property for the owner, or if the holder has changed his name while holding the property, he shall file with his report all prior known names and addresses of each holder of the property.

(4) The report shall be filed before November 1 of each year as of June 30 next preceding, but the report of an insurance corporation shall be filed before May 1 of each year as of December 31 next preceding. The department may postpone the reporting date upon written request by any person required to file a report. If such report is not filed on or before the applicable filing date, the holder shall pay to the department a penalty of $10 per day for each day the report is delinquent, but such penalty shall not exceed $500.

(5) If the holder of property presumed abandoned under this act knows the whereabouts of the owner and if the owner's claim has not been barred by the statute of limitations, the holder shall, before filing the annual report, communicate with the owner and take necessary steps to prevent abandonment from being presumed. The holder shall exercise due diligence to ascertain the whereabouts of the owner.

(6) Verification, if made by a partnership, shall be executed by a partner; if made by an unincorporated association or private corporation, by an officer; and if made by a public corporation, by its chief fiscal officer.

Hi.tory.-s. 11, ch. 61-10; 88. 12, 35, ch. 69·106; s. 222, ch. 77-104; s. 6, ch. 80-84.

717.13 Notice and publication of lists of abandoned property.-

(1) Within 120 days from the filing date as set forth in s. 717.12, the department shall cause notice to be published at least once each week ~or 2 s~cce~sive weeks in a newspaper of general Circulation III

the county in this state in which is located the last known address of any person to be named in the notice. If no address is listed, or if the address is outside this state, the notice shall be published in the county in which the holder of the abandoned property has his principal place of busi.ness within th~s sta~e. .

(2) The published notice shall be entitled NotIce of names of persons appearing to be owners of abandoned property," and shall contain:

(a) The names in alphabetical order and last known addresses, if any, of persons listed in the report and entitled to notice within the county as hereinbefore specified.

(b) A statement that information concerning the amount or description of the property and the name and address of the holder may be obtained by any persons possessing an interest in the property by addressing an inquiry to the department.

(c) A statement that if proof of claim is not presented by the owner to the holder and if the owner's right to receive the property is not established to the holder's satisfaction within 65 days from the date of the second published notice, the abandoned propert?' will be placed not later than 85 days after such publIcation date in the custody of the department to which all further claims must thereafter be directed.

(3) The department is not required to publish in such notice any item of less than $25 unless it deems such publication to be in the public interest.

(4) Within 120 days from the final filing date of the report required by s. 717.12, the department shall mail a notice to each person having an address listed therein who appears to be entitled to property of the value of $25 or more presumed abandoned under this act.

(5) The mail notice shall contain: (a) A statement that, according to a report filed

with the department property is being held to which the addressee appears entitled.

(b) The name and address of the person holding the property and any necessary information regarding changes of name and address of the holder.

(c) A statement that, if satisfactory proof of claim is not presented by the owner to the holder by the date specified in the published notice, the property will be placed in the custody of the department to which all further claims must be directed.

Hi.tory.-s. 12, ch. 61-10; SS. 12,35, ch. 69-106; s. 5, ch. 77-236.

717.131 Petition for administrative declaration of abandoned property.-The holder of any item of personal property, tangible or intangible, may file with the department a petition requesting the department to accept custody of the property, alleging that special circumstances exist, showing compliance with s. 717.12(1), (2), (3), (5) and (6), and attaching proof that a diligent search and inquiry has been made to locate the owner. If the department finds

1127


that the proof of diligent search is satisfactory and that acceptance will preserve and protect the interests of the owner and the state, it shall give notice as provided in s. 717.13 and may accept custody of the property prior to the expiration of the statutory waiting period. Upon acceptance by the department, such property is presumed abandoned.

History.-s. 1, ch. 67·35; ss. 12,35, ch. 69·106; s. 6, ch. 77·236.

717.14 Payments or delivery of abandoned property.-Every person who has filed a report as provided by s. 717.12 shall, within 20 days after the time specified in s. 717.13 for claiming the property from the holder, payor deliver to the department all abandoned property specified in the report, except that, if the owner establishes his right to receive the abandoned property to the satisfaction of the holder within the time specified in s. 717.13, or if it appears that for some other reason the presumption of abandonment is erroneous, the holder need not payor deliver the property, which will no longer be presumed abandoned, to the department, but in lieu thereof shall file a verified written explanation of the proof of claim or of the error in the presumption of abandonment.

History.-s. 13, ch. 61·10; ss. 12, 35, ch. 69·106; s. 7, ch. 77·236.

717.15 Relief from liability by payment or delivery.-

(1) Upon the payment or delivery of abandoned property to the department, the state shall assume custody and shall be responsible for the safekeeping thereof. The retention of related pertinent records shall remain the responsibility of the original holder. Any person who pays or delivers abandoned property to the department under this act is relieved of allliability to the extent of the value of the property so paid or delivered for any claim which then exists or which thereafter may arise or be made in respect to the property. Any holder who has paid moneys to the department pursuant to this act may make payment to any person appearing to such holder to be entitled thereto, and upon proof of such payment and proof that the payee was entitled thereto, the department shall forthwith reimburse the holder for the payment.

(2) The holder of any interest under s. 717.06(2) or (3) or s. 717.10 shall deliver a duplicate certificate to the department within the time specified in s. 717.14. Upon delivery to the department, the holder and any transfer agent, registrar, or other person acting for or on behalf of the holder in executing or delivering such duplicate certificate shall be relieved from all liability to any person, including, but not limited to, any person acquiring the certificate presumed abandoned or the certificate issued to the department, for any losses or damages resulting to such person by the issuance and delivery to the department of such duplicate certificate.

(3) The department may issue an indemnification agreement to any holder of unclaimed property, and any expenses incurred by the department for the issuance and defense of such an agreement are to be paid from the separate account specified in s. 717.19.

History.-s. 14, ch. 61·10; ss. 12, 35, ch. 69·106; s. 7, ch. 77·236; s. 7, ch. 80·84.

717.16 Income accruing after payment or delivery.-When cash property is paid or delivered to the department under this act, the owner is not entitled to receive income or other increments accruing thereafter. When income-producing property other than money is delivered to the department under this act, any dividends, interest, or other increments realized or accruing on such property at or prior to liquidation or conversion thereof into cash shall be credited to the owner's account by the department.

Hislory.-s. 15, ch. 61·10; ss. 12, 35, ch. 69·106; s. 7, ch. 77·236.

717.17 Periods of limitation not a bar.-The expiration of any period of time specified by statute or court order, during which an action or proceeding may be commenced or enforced to obtain payment of a claim for money or recovery of property, shall not prevent the money or property from being presumed abandoned property, nor affect any duty to file a report required by this act or to payor deliver abandoned property to the department.

Hislory.-s. 16, ch. 61·10; ss. 12, 35, ch. 69·106.

717.18 Sale of abandoned property.-(1) All abandoned property, other than money,

delivered to the department under this act may be sold by it. All stocks, certificates of ownership, and bonds of value received by the department shall be sold within 1 year from receipt. However, the department shall have the discretion to withhold from sale any abandoned property that the department deems to be of benefit to the people of this state. Any sale of property other than stocks and bonds shall be to the highest bidder at public sale in whatever place in the state affords in its judgment the most favorable market for the property involved. The department may decline the highest bid and reoffer the property for sale if it considers the price bid insufficient. It need not offer any property for sale if, in its opinion, the probable cost of sale exceeds the value of the property.

(2) Any sale held under this section shall be preceded by a single publication of notice thereof, at least 3 weeks in advance of sale in a newspaper of general circulation in the county where the property is to be sold.

(3) The department may make, execute, and deliver to the purchaser a good and sufficient bill of sale, assignment, or transfer of title of the property sold. If a bond, certificate of shares of stock, or certificate of membership in a corporation or association is sold and assigned, the assignment thereof shall have the same force and effect as though made by the original owner and shall entitle the purchaser to all rights of ownership in and to such certificate. The department shall execute such assignment and transfer as the duly constituted agent and trustee of such originalowner.

(4) If the department determines that any property delivered to it pursuant to this act has no apparent value, it may at any time thereafter destroy or dispose of same with the written approval of the Department of State. In that event, no action or proceeding shall be brought or maintained against the state, any state employee, or against the holder on ac-

1128


count of any action taken by the department pursuant to this subsection with respect to said property.

History.-s. 17, ch. 61-10; ss. 12,35, ch. 69-106; s. I, ch. 72-192; s. 8, ch. 77-236.

717.19 Deposit of funds.-All funds received under this act, including the proceeds from the sale of abandoned property under s. 717.18, shall forthwith be deposited by the department in the State School Fund, except that the department shall retain in a separate account an amount not exceeding $150,000 from which it shall make prompt payment of claims duly allowed by it as hereinafter provided and for all expenses incurred in administering this act. Before making the deposit, it shall record the ~ame and last known address of each person appearmg from the holders' reports to be entitled to the abandoned property; the name and last known address of each insured person or annuitant; and with respect to each policy or contract listed in the report of an insurance corporation, its number, the name of the corporation, and the amount due. The record shall be available for public inspection at all reasonable business hours.

History.-s. 18, ch. 61-10; ss. 12, 35, ch. 69-106; s. 9, ch. 77-236' s. 476 ch. 81-259. ' ,

717.195 Administration of abandoned property.-Abandoned property under this chapter shall be administered by the Division of Finance of the Department of Banking and Finance and shall be funded from funds available in the regulatory trust fund under the division. An amount equal to the actual costs incurred in the administration of this chapter shall be transferred from the separate account specified in s. 717.19 to the regulatory trust fund annually.

History.-s. 1, ch. 72-174; B. 9, ch. 77-236; B. 261, ch. 79-400.

717.20 Claim for abandoned property paid or delivered.-Any person claiming at any time an interest in any property delivered to the state under this act may file a claim thereto or to the proceeds from the sale thereof on the form prescribed by the department.

History.-s. 19, ch. 61-10; 88. 12,35, ch. 69-106.

717.21 Determination of claims.-(1) The department shall determine any claim

filed under this act. (2) If the claim is allowed, the department shall

make payment forthwith. The claim shall be paid without deduction for costs of notices or sale or for service charges.

History.-s. 20, ch. 61-10; BB. 12, 35, ch. 69-106; B. 7, ch. 78-95.

717.22 Judicial action upon determination. -Any person aggrieved by a decision of the department, or as to whose claim the department has failed to act within 90 days after the filing of the claim, may petition for review as provided in chapter 120 to establish his claim. The proceeding shall be brought within 90 days after the decision of the department or within 180 days from the filing of the claim if the department fails to act.

History.-s. 21, ch. 61-10; ss. 12, 35, ch. 69-106; B. 9, ch. 77-236.

717.23 Election to take payment or delivery. -The department, after receiving reports of property deemed abandoned pursuant to this act, may decline to receive any property reported which it deems to have a value less than the cost of giving notice and holding sale or it may, if it deems it desirable because of the small sum involved, postpone taking possession until a sufficient sum accumulates.

History.-B. 22, ch. 61-10; SB. 12, 35, ch. 69-106.

717.24 Examination of records.-The department may at reasonable times and upon reasonable notice examine the records of any person if it has reason to believe that such person has failed to report property that should have been reported pursuant to this act. If any person refuses to permit the examination of his records, the department may issue subpoena to compel such person to testify and produce his records; said subpoena to be served by the sheriff of the county where the person resides or may be found. Such person shall be entitled to the same per diem and mileage as witnesses appearing in the circuit court of the state which shall be paid by the state. If any person shall refuse to obey any subpoena so issued or shall refuse to testify or produce his records, the department may present its petition to the circuit court of the county where any such person is served with the subpoena or where he resides, whereupon said court shall issue its rule nisi to such person requiring him to obey forthwith the subpoena issued by the department or show cause why he fails to obey the same, and unless the said person shows sufficient cause for failing to obey the said subpoena, the court shall forthwith direct such person to obey the same, and upon his refusal to comply, he shall be adjudged in contempt of court and shall be punished as the court may direct.

History.-s. 23, ch. 61-10; ss. 12, 35, ch. 69-106; s. 223, ch. 77-104.

717.25 Proceeding to compel delivery of abandoned property.-If any person refuses to deliver property to the department as required under this act, it shall bring an action in a court of appropriate jurisdiction to enforce such delivery.

History.-s. 24, ch. 61-10; ss. 12,35, ch. 69-106.

717.27 Penalties.-(1) Any person who willfully fails to render any

report or perform other duties required under this act is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(2) Any person who willfully refuses to payor deliver abandoned property to the department as required under this act is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(3) Any person who willfully or fraudulently conceals, destroys, damages, or makes unlawful disposition of any property or of the books, records, or accounts pertaining to property which is subject to the provisions of this act is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(4) In addition to any damages, penalties, or fines

1129


for which a person may be liable under any other provision of law, any person who fails to report or payor deliver unclaimed property within the time prescribed by this chapter shall pay to the department interest at the rate of 12 percent per annum on such property, or value thereof, from the date such property should have been paid or delivered.

History.-s. 26, ch. 61-10; 88. 12,35, ch. 69-106; s. 688, ch. 71-136; s. 10, ch. 77 -236; s. 8, ch. SO-84.

717.28 Rules and regulations.-The department is hereby authorized to make necessary rules

and regulations to carry out the provisions of this act. History.-s. 27, ch. 61-10; 88. 12, 35, ch. 69-106.

717.29 Effect of laws of other states.-This act shall not apply to any property that has been presumed abandoned or escheated under the laws of another state prior to September 30, 1961.

History.-s. 28, ch. 61-10.

717.30 Repeal.-This act shall not repeal, but shall be additional and supplemental to the existing provisions of ss. 43.18,43.19",402.17, and 550.164 and chapter 716.

History.-s. 30, ch. 61-10; s. 175, ch. 79-164.

1130

F.S.1983 CONDOMINIUMS Ch.718

718.101 718.102 718.103 718.104

718.1045

718.105 718.106

718.107

718.108 718.109

718.110 718.111 718.112 718.1124

718.113

718.114 718.115 718.116

718.117 718.118 718.119 718.120

718.121 718.122

718.1225

718.123

CHAPTER 718

CONDOMINIUMS

PART I GENERAL PROVISIONS (ss. 718.101-718.1255)

PART II RIGHTS AND OBLIGATIONS OF DEVELOPERS (ss. 718.201-718.203)

PART III RIGHTS AND OBLIGATIONS OF ASSOCIATION (ss. 718.301-718.304)

PART IV SPECIAL TYPES OF CONDOMINIUMS (ss. 718.401-718.403)

PART V REGULATION AND DISCLOSURE PRIOR TO SALE OF RESIDENTIAL CONDOMINIUMS (ss. 718.501-718.509)

PART VI CONVERSIONS TO CONDOMINIUM (ss. 718.604-718.622)

PART I

GENERAL PROVISIONS

Short title. Purposes. Definitions. Creation of condominiums; contents of

declaration. Time-share estates; limitation on cre

ation. Recording of declaration. Condominium parcels; appurtenances;

possession and enjoyment. Restraint upon separation and partition

of common elements. Common elements. Legal description of condominium par-

cels. Amendment of declaration. The association. Bylaws. Failure to fill vacancies on board of ad

ministration sufficient to constitute a quorum; appointment of receiver upon petition of unit owner.

Maintenance; limitation upon improve-ment.

Association powers. Common expenses and common surplus. Assessments; liability; lien and priority;

interest; collection. Termination. Equitable relief. Limitation of liability. Separate taxation of condominium par

cels; survival of declaration after tax sale; assessment of time-share estates.

Liens. Unconscionability of certain leases; rebut

table presumption. Federal Condominium and Cooperative

Abuse Relief Act of 1980; applicability. Right of owners to peaceably assemble.

718.1232

718.124 718.125 718.1255

Cable television service; resident's right to access without extra charge.

Limitation on actions by association. Attorney's fees. Voluntary arbitration of disputes.

718.101 Short title.-This chapter shall be known and may be cited as the "Condominium Act."

Hi.tory.-s. 1. ch. 76-222.

718.102 Purposes.-The purpose of this chapter is:

(1) To give statutory recognition to the condominium form of ownership of real property.

(2) To establish procedures for the creation, sale, and operation of condominiums.

Every condominium created and existing in this state shall be subject to the provisions of this chapter.

Hi.tory.-s. 1. ch. 76-222.

718.103 Definitions.-As used in this chapter: (1) "Assessment" means a share of the funds re

quired for the payment of common expenses, which from time to time is assessed against the unit owner.

(2) "Association" means the corporate entity re-sponsible for the operation of a condominium.

(3) "Board of administration" means the board of directors or other representative body responsible for administration of the association.

(4) "Conspicuous type" means type in capital letters no smaller than the largest type on the page on which it appears.

(5) "Bylaws" means the bylaws of the association existing from time to time.

(6) "Common elements" means the portions of the condominium property not included in the units.

(7) "Common expenses" means all expenses and assessments properly incurred by the association for the condominium.

(8) "Common surplus" means the excess of all receipts of the association-including, but not limited to, assessments, rents, profits, and revenues on ac-

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Ch.718 CONDOMINIUMS F.S.1983

count of the common elements-over the common expenses.

(9) "Condominium" means that form of ownership of real property which is created pursuant to the provisions of this chapter and which is comprised of units that may be owned by one or more persons, and there is, appurtenant to each unit, an undivided share in common elements.

(10) "Condominium parcel" means a unit, together with the undivided share in the common elements which is appurtenant to the unit.

(11) "Condominium property" means the lands, leaseholds, and personal property that are subjected to condominium ownership, whether or not contiguous, and all improvements thereon and all easements and rights appurtenant thereto intended for use in connection with the condominium.

(12) "Declaration" or "declaration of condominium" means the instrument or instruments by which a condominium is created, as they are from time to time amended.

(13) "Developer" means a person who creates a condominium or offers condominium parcels for sale or lease in the ordinary course of business, but does not include an owner or lessee of a condominium or cooperative unit who has acquired his unit for his own occupancy, nor does it include a cooperative association which creates a condominium by conversion of an existing residential cooperative after control of the association has been transferred to the unit owners if, following the conversion, the unit owners will be the same persons who were unit owners of the cooperative and no units are offered for sale or lease to the public as part of the plan of conversion.

(14) "Limited common elements" means those common elements which are reserved for the use of a certain condominium unit or units to the exclusion of other units, as specified in the declaration of condominium.

(15) "Operation" or "operation of the condominium" includes the administration and management of the condominium property.

(16) "Unit" means a part of the condominium property which is subject to exclusive ownership. A unit may be in improvements, land, or land and improvements together, as specified in the declaration.

(17) "Unit owner" or "owner of a unit" means the owner of a condominium parcel.

(18) "Residential condominium" means a condominium consisting of condominium units, any of which are intended for use as a private temporary or permanent residence, except that a condominium is not a residential condominium if the use for which the units are intended is primarily commercial or industrial and not more than three units are intended to be used for private residence, and are intended to be used as housing for maintenance, managerial, janitorial, or other operational staff of the condominium. If a condominium is a residential condominium but contains units intended to be used for commercial or industrial purposes, then, with respect to those units which are not intended for or used as private residences, the condominium is not a residential condominium.

(19) "Time-share estate" means any interest in a

unit under which the exclusive right of use, possession, or occupancy of the unit circulates among the various owners of time-share estates in such unit in accordance with a fixed time schedule on a periodically recurring basis for a period of time established by such schedule.

(20) "Time-share unit" means a unit in which time-share estates have been created.

(21) "Rental agreement" means any written agreement, or oral agreement if for less duration than 1 year, providing for use and occupancy of premises.

History.- s. 1, ch. 76·222; s. 1. ch. 78·328; s. 2, ch. 80·3; s. 6, ch. 80-323.

718.104 Creation of condominiums; contents of declaration.-Every condominium created in this state shall be created pursuant to this chapter.

(1) A condominium may be created on land owned in fee simple or held under a lease complying with the provisions of s. 718.401.

(2) A condominium is created by recording a declaration in the public records of the county where the land is located, executed and acknowledged with the requirements for a deed. All persons having record title to the interest in the land being submitted to condominium ownership, or their lawfully authorized agents, must join in the execution of the declaration.

(3) All persons having any record interest in any mortgage encumbering the interest in the land being submitted to condominium ownership must either join in the execution of the declaration or execute, with the requirements for deed, and record, a consent to the declaration or an agreement subordinating their mortgage interest to the declaration.

(4) The declaration must contain or provide for the following matters:

(a) A statement submitting the property to condominium ownership.

(b) The name by which the condominium property is to be identified, which shall include the word "condominium" or be followed by the words "a condominium."

(c) The legal description of the land and, if a leasehold estate is submitted to condominium, an identification of the lease.

(d) An identification of each unit by letter, name, or number, or combination thereof, so that no unit bears the same designation as any other unit.

(e) A survey of the land showing all existing easements and a graphic description of the improvements in which units are located and a plot plan thereof that, together with the declaration, are in sufficient detail to identify the common elements and each unit and their relative locations and approximate dimensions. The survey, graphic description, and plot plan may be in the form of exhibits consisting of building plans, floor plans, maps, surveys, or sketches. If the construction of the condominium is not substantially completed, there shall be a statement to that effect, and, upon substantial completion of construction, the developer or the association shall amend the declaration to include the certificate described below. The amendment may be accomplished by referring to the recording data of a survey of the condominium that complies with the certificate. A certificate of a surveyor authorized to practice in this state shall be included in or attached to the declaration or the survey

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or graphic description as recorded under s. 718.105 that the construction of the improvements is substantially complete so that the material, together with the provisions of the declaration describing the condominium property, is an accurate representation of the location and dimensions of the improvements and so that the identification, location, and dimensions of the common elements and of each unit can be determined from these materials. Completed units within each substantially completed building in a condominium development may be conveyed to purchasers, notwithstanding that other buildings in the condominium are not substantially completed, provided that all planned improvements, including, but not limited to, landscaping, utility services and access to the unit, and common element facilities serving such building, as set forth in the declaration, are first completed and the declaration of condominium is first recorded and provided that as to the units being conveyed there is a certificate of a surveyor as required above, including certification that all planned improvements, including, but not limited to, landscaping, utility services and access to the unit, and common element facilities serving the building in which the units to be conveyed are located have been substantially completed, and such certificate is recorded with the original declaration or as an amendment to such declaration. This section shall not, however, operate to require development of improvements and amenities declared to be included in future phases pursuant to s. 718.403 prior to conveying a unit as provided herein. For the purposes of this section, a "certificate of a surveyor" means certification by a surveyor in the form provided herein and may include, along with certification by a surveyor, when appropriate, certification by an architect or engineer authorized to practice in this state. Notwithstanding the requirements of substantial completion provided in this section, nothing contained herein shall prohibit or impair the validity of a mortgage encumbering units together with an undivided interest in the common elements as described in a declaration of condominium recorded prior to the recording of a certificate of a surveyor as provided herein.

(f) The undivided share in the common elements appurtenant to each unit stated as percentages or fractions, which, in the aggregate, must equal the whole.

(g) The proportions or percentages of and manner of sharing common expenses and owning common surplus, which, for a residential condominium, must be the same as the undivided shares in the common elements.

(h) The name of the association, which must be a corporation for profit or a corporation not for profit.

(i) Unit owners' membership and voting rights in the association.

U) The document or documents creating the association, which may be attached as an exhibit.

(k) A copy of the bylaws, which may be attached as an exhibit. Defects or omissions in the bylaws shall not affect the validity of the condominium or title to the condominium parcels.

(1) Other desired provisions not inconsistent with this chapter.

(m) The creation of a nonexclusive easement for ingress and egress over streets, walks, and other rights-of-way serving the units of a condominium, as part of the common elements necessary to provide reasonable access to the public ways, or a dedication of the streets, walks, and other rights-of-way to the public. All easements for ingress and egress shall not be encumbered by any leasehold or lien other than those on the condominium parcels, unless:

1. Any such lien is subordinate to the rights of unit owners, or

2. The holder of any encumbrance or leasehold of any easement has executed and recorded an agreement that the use-rights of each unit owner will not be terminated as long as the unit owner has not been evicted because of a default under the encumbrance or lease, and the use-rights of any mortgagee of a unit who has acquired title to a unit may not be terminated.

(n) If time-share estates will or may be created with respect to any unit in the condominium, a statement in conspicuous type declaring that time-share estates will or may be created with respect to units in the condominium. In addition, the degree, quantity, nature, and extent of the time-share estates that will or may be created shall be defined and described in detail in the declaration, with a specific statement as to the minimum duration of the recurring periods of rights of use, possession, or occupancy that may be created with respect to any unit.

(5) The declaration may include covenants and restrictions concerning the use, occupancy, and transfer of the units permitted by law with reference to real property. However, the rule against perpetuities shall not defeat a right given any person or entity by the declaration for the purpose of allowing unit owners to retain reasonable control over the use, occupancy, and transfer of units.

(6) A person who joins in, or consents to the execution of, a declaration subjects his interest in the condominium property to the provisions of the declaration.

(7) All provisions of the declaration are enforceable equitable servitudes, run with the land, and are effective until the condominium is terminated.

History.-s. 1, ch. 76-222; s. 1, ch. 77-174; s. 2, ch. 78-328; s. 7, ch. 78-340; s. 1, ch. 79-314; s. 3, ch. 82-199. cf.-eh. 721 Real estate time-sharing plans.

718.1045 Time-share estates; limitation on creation.-No time-share estates shall be created with respect to any condominium unit except pursuant to provisions in the declaration expressly permitting the creation of such estates.

History.-s. 3, ch. 78-328.

718.105 Recording of declaration.-(1) When executed as required by s. 718.104, a

declaration together with all exhibits and all amendments is entitled to recordation as an agreement relating to the conveyance of land.

(2) Graphic descriptions of improvements constituting exhibits to a declaration, when accompanied by the certificate of a surveyor required by s. 718.104, may be recorded as a part of a declaration without approval of any public body or officer.

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(3) The clerk of the circuit court recording the declaration may, for his convenience, file the exhibits of a declaration which contains graphic descriptions of improvements in a separate book, and shall indicate the place of filing upon the margin of the record of the declaration.

(4) If the declaration or the surveyor graphic description of the improvements required under s. 718.104(4)(e) does not have the certificate required, the developer shall deliver to the clerk an estimate of the cost of a final surveyor graphic description containing and complying with the certificate prescribed by s. 718.104(4)(e) and shall deposit with the clerk the sum of money specified in the estimate. The clerk shall hold the money until an amendment to the declaration is recorded that complies with the certificate requirements of s. 718.104(4)(e). At that time, the clerk shall pay to the developer or the association presenting the amendment to the declaration the sum of money deposited with him without making any charge for holding the sum, receiving it, or paying out, other than the fees required for recording the condominium documents.

History.-s. I , ch. 76-222; s. I, ch. 77-174; 5.8, ch. 78-340.

718.106 Condominium parcels; appurtenances; possession and enjoyment.-

(1) A condominium parcel created by the declaration is a separate parcel of real property, even though the condominium is created on a leasehold.

(2) There shall pass with a unit, as appurtenances thereto:

(a) An undivided share in the common elements and common surplus.

(b) The exclusive right to use such portion of the common elements as may be provided by the declaration.

(c) An exclusive easement for the use of the airspace occupied by the unit as it exists at any particular time and as the unit may lawfully be altered or reconstructed from time to time. An easement in airspace which is vacated shall be terminated automatically.

(d) Other appurtenances as may be provided in the declaration.

(3) A unit owner is entitled to the exclusive possession of his unit, subject to the provisions of s. 718.111(5). He shall be entitled to use the common elements in accordance with the purposes for which they are intended, but no use may hinder or encroach upon the lawful rights of other unit owners.


718.107 Restraint upon separation and partition of common elements.-

(1) The undivided share in the common elements which is appurtenant to a unit shall not be separated from it and shall pass with the title to the unit, whether or not separately described.

(2) The share in the common elements appurtenant to a unit cannot be conveyed or encumbered except together with the unit.

(3) The shares in the common elements appurtenant to units are undivided, and no action for partition of the common elements shall lie.

History.-s. I , ch. 76-222.

718.108 Common elements.-(1) "Common elements" includes within its mean

ing the following: (a) The condominium property which is not in

cluded within the units. (b) Easements through units for conduits, ducts,

plumbing, wiring, and other facilities for the furnishing of utility services to units and the common elements.

(c) An easement of support in every portion of a unit which contributes to the support of a building.

(d) The property and installations required for the furnishing of utilities and other services to more than one unit or to the common elements.

(2) The declaration may designate other parts of the condominium property as common elements.


718.109 Legal description of condominium parcels.-Following the recording of the declaration, a description of a condominium parcel by the number or other designation by which the unit is identified in the declaration, together with the recording data identifying the declaration, shall be a sufficient legal description for all purposes. The description includes all appurtenances to the unit concerned, whether or not separately described, including, but not limited to, the undivided share in the common elements appurtenant thereto.

Hi.tory.-s. I, ch. 76-222.

718.110 Amendment of declaration.-(1) If the declaration fails to provide a method of

amendment, the declaration may be amended as to all matters except those described in subsection (4) or subsection (8) if the amendment is approved by the owners of not less than two-thirds of the units.

(2) An amendment, other than amendments made by the developer pursuant to ss. 718.104 and 718.403 and any rights the developer may have in the declaration to amend without consent of the unit owners, shall be evidenced by a certificate of the association which shall include the recording data identifying the declaration and shall be executed in the form required for the execution of a deed. Amendments by the developer must be evidenced in writing, but a certificate of the association is not required.

(3) An amendment of a declaration is effective when properly recorded in the public records of the county where the declaration is recorded.

(4) Unless otherwise provided in the declaration as originally recorded, no amendment may change the configuration or size of any condominium unit in any material fashion, materially alter or modify the appurtenances to the unit, or change the proportion or percentage by which the owner of the parcel shares the common expenses and owns the common surplus unless the record owner of the unit and all record owners of liens on it join in the execution of the amendment and unless all the record owners of all other units approve the amendment.

(5) If it appears that through scrivener's error a unit has not been designated as owning an appropriate undivided share of the common elements or does not bear an appropriate share of the common ex-penses or that all the common expenses or interest in

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the common surplus or all of the common elements in the condominium have not been distributed in the declaration, so that the sum total of the shares of common elements which have been distributed or the sum total of the shares of the common expenses or ownership of common surplus fails to equal 100 percent, or if it appears that more than 100 percent of common elements or common expenses or ownership of the common surplus have been distributed, the error may be corrected by filing an amendment to the declaration approved by the board of administration or a majority of the unit owners. To be effective, the amendment must be executed by the association and the owners of the units and the owners of mortgages thereon affected by the modifications being made in the shares of common elements, common expenses, or common surplus. No other unit owner is required to join in or execute the amendment.

(6) The common elements designated by the declaration may be enlarged by an amendment to the declaration. The amendment must describe the interest in the property and must submit the property to the terms of the declaration. The amendment must be approved and executed as provided in this section. The amendment divests the association of title to the land and vests title in the unit owners as part of the common elements, without naming them and without further conveyance, in the same proportion as the undivided shares in the common elements that are appurtenant to the unit owned by them.

(7) The declarations, bylaws, and common elements of two or more independent condominiums of a single complex may be merged to form a single condominium, upon the approval of 80 percent of all the unit owners of each condominium and of all record owners of liens and upon the recording of new or amended articles of incorporation, declarations, and bylaws.

(8) Unless otherwise provided in the declaration as originally recorded, no amendment to the declaration may permit time-share estates to be created in any unit of the condominium, unless the record owner of each unit of the condominium and the record owners of liens on each unit of the condominium join in the execution of the amendment.

(9) Any vote to amend the declaration of condominium relating to a change in percentage of ownership in the common elements or sharing of the common expense shall be conducted by secret ballot.

History.-s. 1, ch. 76-222; s. 8, ch. 77-221; s. 6, ch. 77-222; s. 5, ch. 78-328; s. 2, ch. 78-340.

718.111 The association.-(1) The operation of the condominium shall be by

the association, which must be a corporation for profit or a corporation not for profit. However, any association which was in existence on January 1, 1977, need not be incorporated. The owners of units shall be shareholders or members of the association. The officers and directors of the association have a fiduciary relationship to the unit owners. An association may operate more than one condominium.

(2) The association may contract, sue, or be sued with respect to the exercise or nonexercise of its powers. For these purposes, the powers of the association include, but are not limited to, the maintenance,

management, and operation of the condominium property. After control of the association is obtained by unit owners other than the developer, the association may institute, maintain, settle, or appeal actions or hearings in its name on behalf of all unit owners concerning matters of common interest, including, but not limited to, the common elements; the roof and structural components of a building or other improvements; mechanical, electrical, and plumbing elements serving an improvement or a building; representations of the developer pertaining to any existing or proposed commonly used facilities; and protesting ad valorem taxes on commonly used facilities. If the association has the authority to maintain a class action, the association may be joined in an action as representative of that class with reference to litigation and disputes involving the matters for which the association could bring a class action. Nothing herein limits any statutory or common-law right of any individual unit owner or class of unit owners to bring any action which may otherwise be available.

(3) A unit owner does not have any authority to act for the association by reason of being a unit owner.

(4) The powers and duties of the association include those set forth in this section and those set forth in the declaration and bylaws, if not inconsistent with this chapter.

(5) The association has the irrevocable right to access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or for making emergency repairs necessary to prevent damage to the common elements or to another unit or units.

(6) The association has the power to make and collect assessments and to lease, maintain, repair, and replace the common elements.

(7) The association shall maintain accounting records for each condominium it manages in the county where the condominium is located, according to good accounting practices. The records shall be open to inspection by unit owners or their authorized representatives at reasonable times, and written summaries of them shall be supplied at least annually to unit owners or their authorized representatives. Failure to permit inspection of the association's accounting records by unit owners or their authorized representatives entitles any person prevailing in an enforcement action to recover reasonable attorney's fees from the person in control of the books and records who, directly or indirectly, knowingly denies access to the books and records for inspection. The records shall include, but are not limited to:

(a) A record of all receipts and expenditures. (b) An account for each unit, designating the

name and current mailing address of the unit owner, the amount of each assessment, the dates and amounts in which the assessments come due, the amount paid upon the account, and the balance due.

(8) The association has the power, unless prohibited by the declaration, articles of incorporation, or bylaws of the association, to purchase units in the condominium and to acquire and hold, lease, mortgage, and convey them.

(9)(a) The association shall use its best efforts to

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obtain and maintain adequate insurance to protect the association and the common elements. A copy of each policy of insurance in effect shall be made available for inspection by unit owners at reasonable times.

(b) All hazard policies issued to protect condominium buildings shall provide that the word "building" wherever used in the policy shall include, but shall not necessarily be limited to, fixtures, installations, or additions comprising that part of the building within the unfinished interior surfaces of the perimeter walls, floors, and ceilings of the individual units initially installed, or replacements thereof of like kind or quality, in accordance with the original plans and specifications. With respect to the coverage provided for by this paragraph, the unit owners shall be considered additional insureds under the policy.

(10) Unless prohibited by the declaration, the association has the authority, without the joinder of any unit owner, to modify or move any easement for ingress and egress or for the purposes of utilities if the easement constitutes part of or crosses the condominium property. This subsection does not authorize the association to modify or move any easement created in whole or in part for the use or benefit of anyone other than the unit owners, or crossing the property of anyone other than the unit owners, without their consent or approval as required by law or the instrument creating the easement. Nothing in this subsection affects the minimum requirements of s. 718.104(4)(m).

(11) Notwithstanding any provision of this chapter, an association may operate residential condominiums in a phase project initially created pursuant to former s. 711.64, and may continue to so operate said project as though it was a single condominium for purposes of financial matters, including budgets, assessments, accounting, recordkeeping, and similar matters, if provision is made for such consolidated operation in the applicable declarations of each such condominium as initially recorded or in the bylaws as initially adopted. Notwithstanding any provision in this chapter, common expenses for residential condominiums in such a project being operated by a single association may be assessed against all unit owners in such project pursuant to the proportions or percentages established therefor in the declarations as initially recorded or in the bylaws as initially adopted, subject, however, to the limitations of ss. 718.116 and 718.302.

(12) The association has the power to purchase any land or recreation lease upon the approval of two-thirds of the unit owners of each condominium association, unless a different number or percentage is provided in the declaration or declarations.

(13) Within 60 days following the end of the fiscal or calendar year or annually on such date as is otherwise provided in the bylaws of the association, the board of administration of the association shall mail or furnish by personal delivery to each unit owner a complete financial report of actual receipts and expenditures for the previous 12 months. The report shall show the amounts of receipts by accounts and receipt classifications and shall show the amounts of expenses by accounts and expense classifications in-

cluding, if applicable, but not limited to, the following:

(a) Costs for security; (b) Professional and management fees and ex-

penses; (c) Taxes; (d) Costs for recreation facilities; (e) Expenses for refuse collection and utility ser-

vices; (f) Expenses for lawn care; (g) Costs for building maintenance and repair; (h) Insurance costs; (i) Administrative and salary expenses; and U) General reserves, maintenance reserves, and

depreciation reserves. History.-s. I, ch. 76-222; s. 2, ch. 78-340; ss. 2, 3, 5, ch. 79-314; s. I , ch.

80-323; s. I , ch. 81-225; s. I, ch. 82-199.

718.112 Bylaws.-(1) The administration of the association and the

operation of the condominium property shall be governed by bylaws, which shall be set forth in or included as an exhibit to the declaration. No modification of or amendment to the bylaws is valid unless set forth in or annexed to a recorded amendment to the declaration. The method of amending bylaws shall be governed by separate provisions for amending bylaws and not by the method for amending the declaration.

(2) The bylaws shall provide for the following and, if they do not do so, shall be deemed to include the following:

(a) The form of administration of the association shall be described, indicating the title of the officers and board of administration and specifying the powers, duties, manner of selection and removal, and compensation, if any, of officers and boards. In the absence of such a provision, the board of administration shall be composed of five members, except in the case of condominiums having five or fewer units, in which case one owner of each unit shall be a member of the board of administration. In the absence of provisions to the contrary in the bylaws, the board of administration shall have a president, a secretary, and a treasurer, who shall perform the duties of such officers customarily performed by officers of corporations. Unless prohibited in the bylaws, the board of administration may appoint other officers and grant them the duties it deems appropriate. Unless otherwise provided in the bylaws, the officers shall serve without compensation and at the pleasure of the board of administration.

(b)1. Unless otherwise provided in the bylaws, the percentage of unit owners or voting rights required to make decisions and to constitute a quorum shall be a majority of the units, and decisions shall be made by owners of a majority of the units represented at a meeting at which a quorum is present. Unit owners may vote by proxy.

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

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(c) Meetings of the board of administration shall budget shall be adopted. In determining whether asbe open to all unit owners. Adequate notice of all sessments exceed 115 percent of similar assessments meetings shall be posted conspicuously on the condoin prior years, any authorized provisions for reasonminium property at least 48 hours in advance, except able reserves for repair or replacement of the condoin an emergency. Notice of any meeting in which as- minium property, anticipated expenses by the condosessments against unit owners are to be considered minium association which are not anticipated to be for any reason shall specifically contain a statement incurred on a regular or annual basis, or assessments that assessments will be considered and the nature of for betterments to the condominium property shall any such assessments. be excluded from the computation. However, as long

(d) There shall be an annual meeting of the unit as the developer is in control of the board of adminisowners. Unless the bylaws provide otherwise, vacan- tration, the board shall not impose an assessment for cies on the board of administration caused by the ex- any year greater than 115 percent of the prior fiscal piration of a director's term shall be filled by electing or calendar year's assessment without approval of a new board members. If there is no provision in the majority of all unit owners. bylaws for terms of the members of the board of ad- (g) Subject to the provisions of s. 718.301, any ministration, the terms of all members of the board member of the board of administration may be reof administration shall expire upon the election of called and removed from office with or without cause their successors at the annual meeting. The bylaws by the vote or agreement in writing by a majority of shall not restrict any unit owner desiring to be a can- all unit owners. A special meeting of the unit owners didate for board membership from being nominated to recall a member or members of the board of adfrom the floor. The bylaws shall provide the method ministration may be called by 10 percent of the unit of calling meetings of unit owners, including annual owners giving notice of the meeting as required for a meetings. Written notice shall be given to each unit meeting of unit owners, and the notice shall state the owner and shall be posted in a conspicuous place on purpose of the meeting. the condominium property at least 14 days prior to (h) The manner of collecting from the unit ownthe annual meeting. Unless a unit owner waives in ers their shares of the common expenses shall be statwriting the right to receive notice of the annual meet- ed in the bylaws. Assessments shall be made against ing by mail, the notice of the annual meeting shall be unit owners not less frequently than quarterly, in an sent by mail to each unit owner, and the post-office amount no less than required to provide funds in adcertificate of mailing shall be retained as proof of vance for payment of all of the anticipated current such mailing. Unit owners may waive notice of specif- operating expenses and for all of the unpaid operatic meetings and may take action by written agree- ing expenses previously incurred. ment without meetings, if allowed by the bylaws, the (i) The method by which the bylaws may be declaration of condominium, or any Florida statute. amended consistent with the provisions of this chap-

(e) The minutes of all meetings of unit owners ter shall be stated. If the bylaws fail to provide a and the board of administration shall be kept in a method of amendment, the bylaws may be amended book available for inspection by unit owners, or their if the amendment is approved by owners of not less authorized representatives, and board members at than two-thirds of the units. No bylaw shall be reany reasonable time. The association shall retain vised or amended by reference to its title or number these minutes for a period of not less than 7 years. only. Proposals to amend existing bylaws shall con-

(f) The board of administration shall mail a tain the full text of the bylaws to be amended; new meeting notice and copies of the proposed annual words shall be inserted in the text underlined, and budget of common expenses to the unit owners not words to be deleted shall be lined through with hyless than 30 days prior to the meeting at which the phens. However, if the proposed change is so extenbudget will be considered. If the bylaws or declara- sive that this procedure would hinder, rather than astion provides that the budget may be adopted by the sist, the understanding of the proposed amendment, board of administration, then the unit owners shall it is not necessary to use underlining and hyphens as be given written notice of the time and place of the indicators of words added or deleted, but, instead, a meeting of the board of administration which will notation must be inserted immediately preceding the consider the budget. The meeting shall be open to proposed amendment in substantially the following the unit owners. If an adopted budget requires as- language: "Substantial rewording of bylaw. See bylaw sessment against the unit owners in any fiscal or cal- __ for present text." Nonmaterial errors or omisendar year exceeding 115 percent of the assessments sions in the bylaw process shall not invalidate an othfor the preceding year, the board, upon written appli- erwise properly promulgated amendment. cation of 10 percent of the unit owners to the board, (j) If the transfer, lease, sale, or sublease of a unit shall call a special meeting of the unit owners within by its owner is subject to approval of the association 30 days, upon not less than 10 days' written notice to or any body thereof, a preset fee of up to $50 may be each unit owner. At the special meeting, unit owners charged by the association in connection with any shall consider and enact a budget. Unless the bylaws such transfer, sale, lease, sublease, or approval to covrequire a larger vote, the adoption of the budget shall er the expenditures and services of the association in require a vote of not less than a majority vote of all regard thereto. unit owners. The board of administration may pro- (k) The proposed annual budget of common expose a budget to the unit owners at a meeting of penses shall be detailed and shall show the amounts members or in writing, and if the budget or proposed budgeted by accounts and expense classifications, inbudget is approved by the unit owners at the meeting cluding, if applicable, but not limited to those exor by a majority of all unit owners in writing, the penses listed in s. 718.504(20). In addition to annual

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operating expenses, the budget shall include reserve accounts for capital expenditures and deferred maintenance. These accounts shall include, but not be limited to, roof replacement, building painting, and pavement resurfacing. The amount to be reserved shall be computed by means of a formula which is based upon estimated life and estimated replacement cost of each reserve item. This subsection shall not apply to budgets in which the level of assessments has been guaranteed pursuant to s. 718.116(8) prior to October 1, 1979, provided that the absence of reserves is disclosed to purchasers, or to budgets in which the members of an association have, by a vote of the majority of the members present at a duly called meeting of the association, determined for a fiscal year to provide no reserves or reserves less adequate than required by this subsection.

(1) The fidelity bonding of all officers or directors of any association existing on or after October 1, 1978, who control or disburse funds of the association, in the principal sum of not less than $10,000 for each such officer or director. The association shall bear the cost of bonding. This paragraph shall not apply to any association operating a condominium consisting of 50 units or less; however, any condominium association may bond any officer of the association, and the association shall bear the cost of bonding.

(m) There shall be a provision for voluntary binding arbitration of internal disputes arising from the operation of the condominium among unit owners, associations, and their agents and assigns.

(3) The bylaws may provide for the following: (a) A method of adopting and amending adminis

trative rules and regulations governing the details of the operation and use of the common elements.

(b) Restrictions on, and requirements for the use, maintenance, and appearance of, the units and the use of the common elements.

(c) Other provisions not inconsistent with t his chapter or with the declaration as may be desired.

History.-s. I, ch. 76-222; s. I, ch. 77-174; s. 5, ch. 77-221; ss. 3, 4, ch. 77-222; s. I , ch. 78-340; s. 6, ch. 79-314; s. 2, ch. 80-323; s. 2, ch. 81-225; s. I, ch. 82-113; s. 4, ch. 82-199.

718.1124 Failure to fill vacancies on board of administration sufficient to constitute a quorum; appointment of receiver upon petition of unit owner.-If an association fails to fill vacancies on the board of administration sufficient to constitute a quorum in accordance with the bylaws, any unit owner may apply to the circuit court within whose jurisdiction the condominium lies for the appointment of a receiver to manage the affairs of the association. At least 30 days prior to applying to the circuit court, the unit owner shall mail to the association and post in a conspicuous place on the condominium property a notice describing the intended action, giving the association the opportunity to fill the vacancies. If during such time the association fails to fill the vacancies, the unit owner may proceed with the petition. If a receiver is appointed, the association shall be responsible for the salary of the receiver, court costs, and attorney's fees. The receiver shall have all powers and duties of a duly constituted board of administration and shall serve until the as-

sociation fills vacancies on the board sufficient to constitute a quorum.

Hi8tory.-s. I, ch. 81-185.

718.113 Maintenance; limitation upon improvement.-

(1) Maintenance of the common elements is the responsibility of the association. The declaration may provide that limited common elements shall be maintained by those entitled to use the limited common elements.

(2) There shall be no material alteration or substantial additions to the common elements except in a manner provided in the declaration.

(3) A unit owner shall not make any alterations to his unit which would remove any portion of, or make any additions to, common elements or do anything which would adversely affect the safety or soundness of the common elements or any portion of the condominium property which is to be maintained by the association.

Hi8tory.-s. I , ch. 76-222.

718.114 Association powers.-An association has the power to enter into agreements, to acquire leaseholds, memberships, and other possessory or use interests in lands or facilities such as country clubs, golf courses, marinas, and other recreational facili ties. It has this power whether or not the lands or facilities are contiguous to the lands of the condominium, if they are intended to provide enjoyment, recreation, or other use or benefit to the unit owners. All of these leaseholds, memberships, and other possessory or use interests existing or created at the time of recording the declaration must be stated and fully described in the declaration. Subsequent to the recording of the declaration, the association may not acquire or enter into agreements acquiring these leaseholds, memberships, or other possessory or use interests except as authorized by the declaration. The declaration may provide that the rental, membership fees, operations, replacements, and other expenses are common expenses and may impose covenants and restrictions concerning their use and may contain other provisions not inconsistent with this chapter.

Hi8tory.-s. I , ch. 76-222; s. 4, ch. 79-314.

718.115 Common expenses and common surplus.-

(1) Common expenses include the expenses of the operation, maintenance, repair, or replacement of the common elements, costs of carrying out the powers and duties of the association, and any other expense designated as common expense by this chapter, the declaration, the documents creating the condominium, or the bylaws.

(2) Funds for the payment of common expenses shall be collected by assessments against unit owners in the proportions or percentages provided in the declaration. In a residential condominium, unit owners' shares of common expenses shall be in the same proportions as their ownership interest in the common elements.

(3) Common surplus is owned by unit owners in

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the same shares as their ownership interest in the common elements.

History.-s. 1, ch. 76-222; s. 1. ch. 77-174.

718.116 Assessments; liability; lien and priority; interest; collection.-

(l)(a) A unit owner, regardless of how title is acquired, including a purchaser at a judicial sale, shall be liable for all assessments coming due while he is the unit owner. In a voluntary conveyance, the grantee shall be jointly and severally liable with the grantor for all unpaid assessments against the grantor for his share of the common expenses up to the time of the conveyance, without prejudice to any right the grantee may have to recover from the grantor the amounts paid by the grantee.

(b) With respect to each time-share unit, each owner of a time-share estate therein shall be jointly and severally liable for the payment of all assessments and other charges levied pursuant to the declaration or bylaws against or with respect to that unit, except to the extent that the declaration or bylaws may provide to the contrary.

(2) The liability for assessments may not be avoided by waiver of the use or enjoyment of any common elements or by abandonment of the unit for which the assessments are made.

(3) Assessments and installments on them not paid when due bear interest at the rate provided in the declaration, from the due date until paid. This rate may not exceed the rate allowed by law, and, if no rate is provided in the declaration, then interest shall accrue at the legal rate.

(4)(a) The association has a lien on each condominium parcel for any unpaid assessments with interest and, if the declaration so allows, for reasonable attorney's fees incurred by the association incident to the collection of the assessment or enforcement of the lien. The lien is effective from and after recording a claim of lien in the public records in the county in which the condominium parcel is located, stating the description of the condominium parcel, the name of the record owner, the amount due, and the due dates. The lien is in effect until all sums secured by it have been fully paid or until barred by chapter 95. The claim of lien includes only assessments which are due when the claim is recorded. A claim of lien must be signed and acknowledged by an officer or agent of the association. Upon payment, the person making the payment is entitled to a satisfaction of the lien. By recording a notice in substantially the following form, a unit owner or his agent or attorney may require the association to enforce a recorded claim of lien against his condominium parcel:

NOTICE OF CONTEST OF LIEN TO: (Name and address of .. sociation)

You are notified that the undersigned contests the claim of lien filed by you on __ 19 __ , and recorded in Official Records Book __ at Page __ , of the public records of __ County, Florida, and that the time within which you may file suit to enforce your lien is limited to 90 days from the date of service of this notice.

Executed this __ day of __ , 19 __ . Signed: (Owner or Attorney)

(b) The clerk of the circuit court shall mail a copy of the recorded notice of contest to the lien claimant at the address shown in the claim of lien or most recent amendment to it, shall certify to the service on the face of the notice, and shall record the notice. Service is complete upon mailing. After service, the association has 90 days in which to file an action to enforce the lien, and if the action is not filed within the 90-day period, the lien is void.

(5)(a) The association may bring an action in its name to foreclose a lien for assessments in the manner a mortgage of real property is foreclosed and may also bring an action to recover a money judgment for the unpaid assessments without waiving any claim of lien.

(b) No foreclosure judgment may be entered until at least 30 days after the association gives written notice to the unit owner of its intention to foreclose its lien to collect the unpaid assessments. If this notice is not given at least 30 days before the foreclosure action is filed, and if the unpaid assessments, including those coming due after the claim of lien is recorded, are paid before the entry of a final judgment of foreclosure, the association shall not recover attorney's fees or costs. The notice must be given by delivery of a copy of it to the unit owner or by certified mail, return receipt requested, addressed to the unit owner. If, after diligent search and inquiry, the association cannot find the unit owner or a mailing address at which the unit owner will receive the notice, the court may proceed with the foreclosure action and may award attorney's fees and costs as permitted by law. The notice requirements of this subsection are satisfied if the unit owner records a Notice of Contest of Lien as provided in subsection (4) .

(c) If the unit owner remains in possession of the unit and the claim of lien is foreclosed, the court, in its discretion, may require the unit owner to pay a reasonable rental for the unit, and the association is entitled to the appointment of a receiver to collect the rent.

(d) The association, unless prohibited by the declaration, the documents creating the association, or its bylaws, has the power to purchase the condominium parcel at the foreclosure sale and to hold, lease, mortgage, or convey it.

(6) When the mortgagee of a first mortgage of record, or other purchaser, of a condominium unit obtains title to the condominium parcel as a result of foreclosure of the first mortgage, or, if the declaration so provides, as a result of a deed given in lieu of foreclosure, such acquirer of title and his successors and assigns shall not be liable for the share of common expenses or assessments by the association pertaining to the condominium parcel or chargeable to the former unit owner of the parcel which became due prior to acquisition of title as a result of the foreclosure, unless the share is secured by a claim of lien for assessments that is recorded prior to the recording of the foreclosed mortgage. The unpaid share of common expenses or assessments are common expenses collectible from all of the unit owners, including such acquirer and his successors and assigns. If the decla-

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ration so provides, the foregoing provision may apply to any mortgage of record and shall not be restricted to first mortgages of record. A first mortgagee acquiring title to a condominium parcel as a result of foreclosure, or a deed in lieu of foreclosure, may not, during the period of its ownership of such parcel, whether or not such parcel is unoccupied, be excused from the payment of some or all of the common expenses coming due during the period of such ownership.

(7) Any unit owner has the right to require from the association a certificate showing the amount of unpaid assessments against him with respect to his condominium parcel. The holder of a mortgage or other lien of record has the same right as to any condominium parcel upon which he has a lien.

(8) No unit owner may be excused from the payment of his share of the common expense of a condominium unless all unit owners are likewise proportionately excused from payment, except as provided in subsection (6) and in the following cases:

(a) If the declaration so provides, a developer or other person owning condominium units offered for sale may be excused from the payment of the share of the common expenses and assessments related to those units for a stated period of time subsequent to the recording of the declaration of condominium. The period must terminate no later than the first day of the fourth calendar month following the month in which the closing of the purchase and sale of the first condominium unit occurs. However, the developer must pay the portion of common expenses incurred during that period which exceed the amount assessed against other unit owners.

(b) A developer or other person owning condominium units or having an obligation to pay condominium expenses may be excused from the payment of his share of the common expense which would have been assessed against those units during the period of time that he shall have guaranteed to each purchaser in the purchase contract, declaration, or prospectus, or by agreement between the developer and a majority of the unit owners other than the developer, that the assessment for common expenses of the condominium imposed upon the unit owners would not increase over a stated dollar amount and shall have obligated himself to pay any amount of common expenses incurred during that period and not produced by the assessments at the guaranteed level receivable from other unit owners.

(9) Any unit owner shall have the right to require from the association a certificate showing the amount of unpaid assessments against him with respect to his condominium parcel. The holder of a mortgage or other iien shall have the same right as to any condominium parcel upon which he has a lien. Any person other than the owner who relies upon such certificate shall be protected thereby.

History.-s. 1, ch. 76-222; s. 1, ch. 77-174; s. 9, ch. 77-221; s. 7, ch. 77-222; s. 6, ch. 78-328.

holders of recorded liens affecting any of the condominium parcels.

(2) Unless otherwise provided in the declaration as originally recorded or as amended pursuant to s, 718.110(5), upon removal of the condominium property from the provisions of this chapter, the condominium property is owned in common by the unit owners in the same undivided shares as each owner previously owned in the common elements. All liens shall be transferred to the undivided share in the condominium property attributable to the unit originally encumbered by the lien in its same priority.

(3) The termination of a condominium does not bar the creation of another condominium affecting all or any portion of the same property.

Hi8tory.-s. 1, ch. 76-222.

718.118 Equitable relief.-In the event of substantial damage to or destruction of all or a substantial part of the condominium property, and if the property is not repaired, reconstructed, or rebuilt within a reasonable period of time, any unit owner may petition a court for equitable relief, which may include a termination of the condominium and a partition.

Hi8tory.-s. 1, ch. 76-222.

718.119 Limitation of liability.-(1) The liability of the owner of a unit for com

mon expenses is limited to the amounts for which he is assessed for common expenses from time to time in accordance with this chapter, the declaration, and bylaws.

(2) The owner of a unit may be personally liable for the acts or omissions of the association in relation to the use of the common elements, but only to the extent of his pro rata share of that liability in the same percentage as his interest in the common elements, and then in no case shall that liability exceed the value of his unit.

(3) In any legal action in which the association may be exposed to liability in excess of insurance coverage protecting it and the unit owners, the association shall give notice of the exposure within a reasonable time to all unit owners, and they shall have the right to intervene and defend.

Hi8tory.-s. 1, ch. 76-222; s. 6, ch. 77-221; s. 5, ch. 77-222.

718.120 Separate taxation of condominium parcels; survival of declaration after tax sale; assessment of time-share estates.-

(1) Ad valorem taxes and special assessments by taxing authorities shall be assessed against the condominium parcels and not upon the condominium property as a whole. Each condominium parcel shall be separately assessed for ad valorem taxes and special assessments as a single parcel. The taxes and special assessments levied against each condominium parcel shall constitute a lien only upon the condominium parcel assessed and upon no other portion of

718.117 Termination.- the condominium property. (1) Unless otherwise provided in the declaration, (2) All provisions of a declaration relating to a

the condominium property may be removed from the condominium parcel which has been sold for taxes or provisions of this chapter only by consent of all of the special assessments survive and are enforceable after unit owners, evidenced by a recorded instrument to the issuance of a tax deed or master's deed, upon that effect, and upon the written consent by all of the foreclosure of an assessment, a certificate or lien, a

1140


tax deed, tax certificate, or tax lien, to the same extent that they would be enforceable against a voluntary grantee of the title immediately prior to the delivery of the tax deed, master's deed, or clerk's certificate of title as provided in s. 197.281.

(3) Condominium property divided into fee time-share real property shall be assessed for purposes of ad valorem taxes and special assessments as provided in s. 192.037.

History.- s. 1, ch. 76-222; s. 58, ch. 82-226.

718.121 Liens.-(1) Subsequent to recording the declaration and

while the property remains subject to the declaration, no liens of any nature are valid against the condominium property as a whole except with the unanimous consent of the unit owners. During this period, liens may arise or be created only against individual condominium parcels.

(2) Labor performed on or materials furnished to a unit shall not be the basis for the filing of a lien pursuant to the Mechanics' Lien Law against the unit or condominium parcel of any unit owner not expressly consenting to or requesting the labor or materials. Labor performed on or materials furnished to the common elements are not the basis for a lien on the common elements, but if authorized by the association, the labor or materials are deemed to be performed or furnished with the express consent of each unit owner and may be the basis for the filing of a lien against all condominium parcels in the proportions for which the owners are liable for common expenses.

(3) If a lien against two or more condominium parcels becomes effective, each owner may relieve his condominium parcel of the lien by exercising any of the rights of a property owner under chapter 713, or by payment of the proportionate amount attributable to his condominium parcel. Upon the payment, the lienor shall release the lien of record for that condominium parcel.

History.- s. 1, ch. 76-222.

718.122 Unconscionability of certain leases; rebuttable presumption.-

(1) A lease pertaining to use by condominium unit owners of recreational or other common facilities, irrespective of the date on which such lease was entered into, is presumptively unconscionable if all of the following elements exist:

(a) The lease was executed by persons none of whom at the time of the execution of the lease were elected by condominium unit owners, other than the developer, to represent their interests;

(b) The lease requires either the condominium association or the condominium unit owners to pay real estate taxes on the subject real property;

(c) The lease requires either the condominium association or the condominium unit owners to insure buildings or other facilities on the subject real property against fire or any other hazard;

(d) The lease requires either the condominium association or the condominium unit owners to perform some or all maintenance obligations pertaining to the subject real property or facilities located upon the subject real property;

(e) The lease requires either the condominium association or the condominium unit owners to pay rents to the lessor for a period of 21 years or more;

(f) The lease provides that failure of the lessee to make payments of rents due under the lease either creates, establishes, or permits establishment of a lien upon individual condominium units of the condominium to secure claims for rent;

(g) The lease requires an annual rental which exceeds 25 percent of the appraised value of the leased property as improved, provided that, for purposes of this paragraph, "annual rental" means the amount due during the first 12 months of the lease for all units, regardless of whether such units were in fact occupied or sold during that period, and "appraised value" means the appraised value placed upon the leased property the first tax year after the sale of a unit in the condominium;

(h) The lease provides for a periodic rental increase based upon reference to a price index; and

(i) The lease or other condominium documents require that every transferee of a condominium unit must assume obligations under the lease.

(2) The Legislature expressly finds that many leases involving use of recreational or other common facilities by residents of condominiums were entered into by parties wholly representative of the interests of a condominium developer at a time when the condominium unit owners not only did not control the administration of their condominium, but also had little or no voice in such administration. Such leases often contain numerous obligations on the part of either or both a condominium association and condominium unit owners with relatively few obligations on the part of the lessor. Such leases mayor may not be unconscionable in any given case. Nevertheless, the Legislature finds that a combination of certain onerous obligations and circumstances warrants the establishment of a rebuttable presumption of unconscionability of certain leases, as specified in subsection (1). The presumption may be rebutted by a lessor upon the showing of additional facts and circumstances to justify and validate what otherwise appears to be an unconscionable lease under this section. Failure of a lease to contain all the enumerated elements shall neither preclude a determination of unconscionability of the lease nor raise a presumption as to its cons cion ability. It is the intent of the Legislature that this section is remedial and does not create any new cause of action to invalidate any condominium lease, but shall operate as a statutory prescription on procedural matters in actions brought on one or more causes of action existing at the time of the execution of such lease.

History.-s. 3, ch. 77-221.

718.1225 Federal Condominium and Cooperative Abuse Relief Act of 1980; applicability.-It is the intent of the Legislature that the provisions of Title VI of Pub. L. No. 96-399, other than the exceptions stated in s. 611 of that act, shall not apply in this state.

History.-s. 6, ch. 82-199.

718.123 Right of owners to peaceably assemble.-

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(1) All common elements, common areas, and recreational facilities serving any condominium shall be available to unit owners in the condominium or condominiums served thereby and their invited guests for the use intended for such common elements, common areas, and recreational facilities. The entity or entities responsible for the operation of the common elements, common areas, and recreational facilities may adopt reasonable rules and regulations pertaining to the use of such common elements, common areas, and recreational facilities. No entity or entities shall unreasonably restrict any unit owner's right to peaceably assemble or right to invite public officers or candidates for public office to appear and speak in common elements, common areas, and recreational facilities.

(2) Any owner prevented from exercising rights guaranteed by subsection (1) may bring an action in the appropriate court of the county in which the alleged infringement occurred, and, upon favorable adjudication, the court shall enjoin the enforcement of any provision contained in any condominium document or rule which operates to deprive the owner of such rights.

History.-s. I , ch. 77·222; 8. 262, ch. 79·400; 8. 2, ch. 81·185.

718.1232 Cable television service; resident's right to access without extra charge.-No resident of any condominium dwelling unit, whether tenant or owner, shall be denied access to any available franchised or licensed cable television service, nor shall such resident or cable television service be required to pay anything of value in order to obtain or provide such service except those charges normally paid for like services by residents of, or providers of such services to, single-family homes within the same franchised or licensed area and except for installation charges as such charges may be agreed to between such resident and the provider of such services.

History.-s. 16. ch. 81·185.

718.124 Limitation on actions by association.-The statute of limitations for any actions in law or equity which a condominium association or a cooperative association may have shall not begin to run until the unit owners have elected a majority of the members of the board of administration.

History.- s. 9, ch. 77-222; 8. 263, ch. 79-400.

718.125 Attorney's fees.-If a contract or lease between a condominium unit owner or association and a developer contains a provision allowing attorney's fees to the developer, should any litigation arise under the provisions of the contract or lease, the court shall also allow reasonable attorney's fees to the unit owner or association when the unit owner or association prevails in any action by or against the unit owner or association with respect to the contract or lease.

History.-s. 9. ch. 78-340.

718.1255 Voluntary arbitration of disputes. -The Division of Florida Land Sales and Condominiums of the Department of Business Regulation

ter. No person may be employed by the department as a full-time arbitrator unless he is a member in good standing of The Florida Bar. The department shall promulgate rules of procedure to govern such binding arbitration hearings. The decision of an arbitrator shall be final; however, such a decision shall not be deemed final agency action. Nothing in this provision shall be construed to foreclose parties from proceeding in a trial de novo; if such judicial proceedings are initiated, the final decision of the arbitrator shall be admissible in evidence. Any party may seek enforcement of the final decision of an arbitrator in a court of competent jurisdiction.

History.-s. 4, ch. 82-199.

PART II

RIGHTS AND OBLIGATIONS OF DEVELOPERS

718.201 Taxes; bond for payment of liability during construction.

718.202 Sales or reservation deposits prior to closing.

718.203 Warranties.

718.201 Taxes; bond for payment of liability during construction.-

(1) Prior to the commencement of any construction activity with respect to a proposed condominium apartment development, the developer thereof shall post a bond or place-an amount of money in escrow as provided in this section, conditioned for payment to the tax collector in the county in which the property or parcel lies, or his successor, upon default in payment of property taxes or special assessments assessed against the property or parcel prior to time of closing with a unit owner. The developer may select whether to post a bond or place an amount of money in escrow, but, if such selection is not made and bond posted or amount of money placed in escrow prior to the beginning of construction, the tax collector or his successor shall make the selection and require compliance with the provisions of this section. However, the developer shall be exempt from the provisions of this section upon furnishing to the clerk of the circuit court evidence of payment of all taxes and assessments due on the property or parcel.

(2) The bond required to be posted or the amount of money required to be placed in escrow under the provisions of this section shall be in the amount equal to 110 percent of the total ad valorem tax liability against the property or parcel in the year immediately preceding the year in which construction is proposed to be commenced. Such bond or account in escrow shall be posted or placed, as appropriate, with the clerk of the circuit court in the county in which the property or parcel lies.

(3) No interest shall be paid upon any bond posted or sum of money placed in escrow under the provisions of this section.

Hi.tory.-8. I , ch. 76-222; 8. I , ch. 77-174.

shall employ full-time arbitrators to conduct the 718.202 Sales or reservation deposits prior binding arbitration hearings provided by this chap- to closing.-

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(1) If a developer contracts to sell a condominium parcel and the construction, furnishing, and landscaping of the property submitted to condominium ownership has not been substantially completed in accordance with the plans and specifications and representations made by the developer in the disclosures required by this chapter, the developer shall pay into an escrow account established with a bank or trust company having trust powers, an attorney who is a member of The Florida Bar, a real estate broker registered under chapter 475, any financial lending institution having a net worth in excess of $5 million, or a title insurance company authorized to insure title to real property in the State of Florida, all payments up to 10 percent of the sale price received by the developer from the buyer towards the sale price. The escrow agent shall give to the purchaser a receipt for the deposit, upon request. In lieu of the foregoing, the division director shall have the discretion to accept other assurances, including, but not limited to, a surety bond or an irrevocable letter of credit in an amount equal to the escrow requirements of this section. Default determinations and refund of deposits shall be governed by the escrow release provision of this subsection. The escrowed funds may be deposited in separate accounts or in common escrow or trust accounts or commingled with other escrow or trust accounts handled by or received by the escrow agent. The escrow agent may invest the escrow funds in securities of the United States or any agency thereof or in savings or time deposits in institutions insured by an agency of the United States. Funds shall be released from escrow as follows:

(a) If a buyer properly terminates the contract pursuant to its terms or pursuant to this chapter, the funds shall be paid to the buyer together with any interest earned.

(b) If the buyer defaults in the performance of his obligations under the contract of purchase and sale, the funds shall be paid to the developer together with any interest earned.

(c) If the contract does not provide for the payment of any interest earned on the escrowed funds, interest shall be paid to the developer at the closing of the transaction.

(d) If the funds of a buyer have not been previously disbursed in accordance with the provisions of this subsection, they may be disbursed to the developer by the escrow agent at the closing of the transaction, unless prior to the disbursement the escrow agent receives from the buyer written notice of a dispute between the buyer and developer.

(2) All payments in excess of the 10 percent of the sale price described in subsection (1) received prior to completion of construction by the developer from the buyer on a contract for purchase of a condominium parcel shall be held in a special escrow account by the developer or his agent and may not be used by the developer prior to closing the transaction, except as provided in subsection (3) or except for refund to the buyer. If the money remains in this special account for more than 3 months and earns interest, the interest shall be paid as provided in subsection (1).

(3) If the contract for sale of the condominium

unit so provides, the developer may withdraw escrow funds in excess of 10 percent of the purchase price from the special account required by subsection (2) when the construction of improvements has begun. He may use the funds in the actual construction and development of the condominium property in which the unit to be sold is located. However, no part of these funds may be used for salaries, commissions, or expenses of salesmen or for advertising purposes. A contract which permits use of the advance payments for these purposes shall include the following legend conspicuously printed or stamped in boldfaced type on the first page of the contract and immediately above the place for signature of the buyer: ANY PA YMENT IN EXCESS OF 10 PERCENT OF THE PURCHASE PRICE MADE TO DEVELOPER PRIOR TO CLOSING PURSUANT TO THIS CONTRACT MAYBE USED FOR CONSTRUCTION PURPOSES BY THE DEVELOPER.

(4) "Completion of construction" means issuance of a certificate of occupancy for the entire building or improvement, or the equivalent authorization issued by the governmental body having jurisdiction, and, in jurisdictions where no certificate of occupancy or equivalent authorization is issued, it means substantial completion of construction, finishing, and equipping of the building or improvements according to the plans and specifications.

(5) Failure to comply with the provisions of this section renders the contract voidable by the buyer, and, if voided, all sums deposited or advanced under the contract shall be refunded with interest at the highest rate then being paid on savings accounts, excluding certificates of deposit, by savings and loan associations in the area in which the condominium property is located.

(6) If a developer enters into a reservation agreement, the developer shall pay into an escrow account established with a trust company, a bank having trust powers, an attorney who is a member of The Florida Bar, a real estate broker registered under chapter 475, or a title insurance company authorized to insure title to real property in this state all reservation deposit payments. Reservation deposits shall be payable to the escrow agent, who shall give to the prospective purchaser a receipt for the deposit, acknowledging that the deposit is being held pursuant to the requirements of this subsection. Funds shall not be deposited out of state unless the out-of-state party holding such escrow funds submits to the jurisdiction of the division and the courts of this state for any cause of action arising from the escrow. The funds may be placed in either interest-bearing or non-interest-bearing accounts, provided that the funds shall at all reasonable times be available for withdrawal in full by the escrow agent. The developer shall maintain separate records for each condominium or proposed condominium for which deposits are being accepted. Upon written request to the escrow agent by the prospective purchaser or developer, the funds shall be immediately and without qualification refunded in full to the prospective purchaser. Upon such refund, any interest shall be paid to the prospective purchaser, unless otherwise provided in the reservation agreement. A reservation deposit shall not be released directly to the developer except as a

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down payment on the purchase price simultaneously with or subsequent to the execution of a contract. Upon the execution of a purchase agreement for a unit, any funds paid by the purchaser as a deposit to reserve the unit pursuant to a reservation agreement, and any interest thereon, shall cease to be subject to the provisions of this subsection and shall instead be subject to the provisions of subsections (1)-(5).

(7) Any developer who willfully fails to pay all required funds into the escrow accounts required by this section is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. I , ch. 76-222; s. 7, ch. 79-314; s. 3, ch. 80-323; s. 3, ch. 81-185.

718.203 Warranties.-(1) The developer shall be deemed to have grant

ed to the purchaser of each unit an implied warranty of fitness and merchantability for the purposes or uses intended as follows:

(a) As to each unit, a warranty for 3 years commencing with the completion of the building containing the unit.

(b) As to the personal property that is transferred with, or appurtenant to, each unit, a warranty which is for the same period as that provided by the manufacturer of the personal property, commencing with the date of closing of the purchase or the date of possession of the unit, whichever is earlier.

(c) As to all other improvements for the use of unit owners, a 3-year warranty commencing with the date of completion of the improvements.

(d) As to all other personal property for the use of unit owners, a warranty which shall be the same as that provided by the manufacturer of the personal property.

(e) As to the roof and structural components of a building or other improvements and as to mechanical, electrical, and plumbing elements serving improvements or a building, except mechanical elements serving only one unit, a warranty for a period beginning with the completion of construction of each building or improvement and continuing for 3 years thereafter or 1 year after owners other than the developer obtain control of the association, whichever occurs last, but in no event more than 5 years.

(f) As to all other property which is conveyed with a unit, a warranty to the initial purchaser of each unit for a period of 1 year from the date of closing of the purchase or the date of possession, whichever occurs first.

(2) The contractor and all subcontractors and suppliers grant to the developer and to the purchaser of each unit implied warranties of fitness as to the work performed or materials supplied by them as follows:

(a) For a period of 3 years from the date of completion of construction of a building or improvement, a warranty as to the roof and structural components of the building or improvement and mechanical and plumbing elements serving a building or an improvement, except mechanical elements serving only one unit.

(b) For a period of 1 year after completion of all construction, a warranty as to all other improvements and materials.

(3) "Completion of a building or improvement" means issuance of a certificate of occupancy for the entire building or improvement, or the equivalent authorization issued by the governmental body having jurisdiction, and in jurisdictions where no certificate of occupancy or equivalent authorization is issued, it means substantial completion of construction, finishing, and equipping of the building or improvement according to the plans and specifications.

(4) These warranties are conditioned upon routine maintenance being performed, unless the maintenance is an obligation of the developer or a developer-controlled association.

(5) The warranties provided by this section shall inure to the benefit of each owner and his successor owners and to the benefit of the developer.

(6) Nothing in this section affects a condominium as to which rights are established by contracts for sale of 10 percent or more of the units in the condominium by the developer to prospective unit owners prior to July 1, 1974, or as to condominium buildings on which construction has been commenced prior to July 1, 1974.

(7) Residential condominiums may be covered by an insured warranty program underwritten by a licensed insurance company registered in this state, provided that such warranty program meets the minimum requirements of this chapter; to the degree that such warranty program does not meet the minimum requirements of this chapter, such requirements shall apply.

History.-s. I , ch. 76-222; s. I, ch. 77-221; s. 8, ch. 77-222; s. 3, ch. 78-340; 8 .

9, ch. 79-314.

718.301 718.302

718.3025

718.303 718.304

PART III

RIGHTS AND OBLIGATIONS OF ASSOCIATION

Transfer of association control. Agreements entered into by the associa

tion. Agreements for operation, maintenance,

or management of condominiums; specific requirements.

Obligations of owners. Association's right to amend declaration

of condominium.

718.301 Transfer of association control.(1) When unit owners other than the developer

own 15 percent or more of the units in a condominium that will be operated ultimately by an association, the unit owners other than the developer shall be entitled to elect no less than one-third of the members of the board of administration of the association. Unit owners other than the developer are entitled to elect not less than a majority of the members of the board of administration of an association:

(a) Three years after 50 percent of the units that will be operated ultimately by the association have been conveyed to purchasers;

(b) Three months after 90 percent of the units that will be operated ultimately by the association have been conveyed to purchasers;

1144 . I ' ..


(c) When all the units that will be operated ultimately by the association have been completed, some of them have been conveyed to purchasers, and none of the others are being offered for sale by the developer in the ordinary course of business; or

(d) When some of the units have been conveyed to purchasers and none of the others are being constructed or offered for sale by the developer in the ordinary course of business,

whichever occurs first. The developer is entitled to elect at least one member of the board of administration of an association as long as the developer holds for sale in the ordinary course of business at least 5 percent, in condominiums with fewer than 500 units, and 2 percent, in condominiums with more than 500 units, of the units in a condominium operated by the association.

(2) Within 60 days after the unit owners other than the developer are entitled to elect a member or members of the board of administration of an association, the association shall call, and give not less than 30 days' or more than 40 days' notice of, a meeting of the unit owners to elect the members of the board of administration. The meeting may be called and the notice given by any unit owner if the association fails to do so. Upon election of the first unit owner other than the developer to the board of administration, the developer shall forward to the division the name and mailing address of the unit owner board member.

(3) If a developer holds units for sale in the ordinary course of business, none of the following actions may be taken without approval in writing by the developer:

(a) Assessment of the developer as a unit owner for capital improvements.

(b) Any action by the association that would be detrimental to the sales of units by the developer. However, an increase in assessments for common expenses without discrimination against the developer shall not be deemed to be detrimental to the sales of units.

(4) Prior to, or not more than 60 days after, the time that unit owners other than the developer elect a majority of the members of the board of administration of an association, the developer shall relinquish control of the association, and the unit owners shall accept control. Simultaneously, the developer shall deliver to the association all property of the unit owners and of the association held or controlled by the developer, including, but not limited to, the following items, if applicable, as to each condominium operated by the association:

(a)l. The original or a photocopy of the recorded declaration of condominium and all amendments thereto. If a photocopy is provided, it shall be certified by affidavit of the developer, or an officer or agent of the developer, as being a complete copy of the actual recorded declaration.

2. A certified copy of the association's articles of incorporation, or if the association was created prior to the effective date of this act and it is not incorporated, then copies of the documents creating the association.

3. A copy of the bylaws.

4. The minute books, including all minutes, and other books and records of the association, if any. . 5. Any house rules and regulations which have

been promulgated. (b) Resignations of officers and members of the

board of administration who are required to resign because the developer is required to relinquish control of the association.

(c) The financial records, including financial statements of the association, and source documents since the incorporation of the association through the date of turnover. The records shall be reviewed by an independent certified public accountant. The minimum report required shall be a review in accordance with generally accepted accounting standards as defined by rule by the Board of Accountancy. The accountant performing the review shall examine to the extent necessary supporting documents and records, including the cash disbursements and related paid invoices to determine if expenditures were for association purposes and the billings, cash receipts, and related records to determine that the developer was charged and paid the proper amounts of assessments.

(d) Association funds or control thereof. (e) All tangible personal property that is property

of the association, represented by the developer to be part of the common elements or ostensibly part of the common elements, and an inventory of that property.

(f) A copy of the plans and specifications utilized in the construction or remodeling of improvements and the supplying of equipment to the condominium and in the construction and installation of all mechanical components serving the improvements and the site, with a certificate in affidavit form of the developer, his agent, or an architect or engineer authorized to practice in this state that such plans and specifications represent, to the best of their knowledge and belief, the actual plans and specifications utilized in the construction and improvement of the condominium property and for the construction and installation of the mechanical components serving the improvements. If the condominium property has been declared a condominium more than 3 years after the completion of construction or remodeling of the improvements, the requirements of this paragraph shall not apply.

(g) Insurance policies. (h) Copies of any certificates of occupancy which

may have been issued for the condominium property. (i) Any other permits issued by governmental

bodies applicable to the condominium property in force or issued within 1 year prior to the date the unit owners other than the developer take control of the association.

(j) All written warranties of the contractor, subcontractors, suppliers, and manufacturers, if any, that are still effective.

(k) A roster of unit owners and their addresses and telephone numbers, if known, as shown on the developer's records.

(1) Leases of the common elements and other leases to which the association is a party.

(m) Employment contracts or service contracts in which the association is one of the contracting parties or service contracts in which the association or the

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unit owners have an obligation or responsibility, directly or indirectly, to pay some or all of the fee or charge of the person or persons performing the service.

(n) All other contracts to which the association is a party.

History.-s. I, ch. 76·222; s. 7, ch. 77·221;. s. 10, ch. 79·314; s. 264, ch. 79·400; s. 4, ch. 81·185.

718.302 Agreements entered into by the association.-

(1) Any grant or reservation made by a declaration, lease, or other document, and any contract made by an association prior to assumption of control of the association by unit owners other than the developer, that provides for operation, maintenance, or management of a condominium association or property serving the unit owners of a condominium shall be fair and reasonable, and may be canceled by unit owners other than the developer:

(a) If the association operates only one condominium and the unit owners other than the developer have assumed control of the association, or if unit owners other than the developer own not less than 75 percent of the units in the condominium, the cancellation shall be by concurrence of the owners of not less than 75 percent of the units other than the units owned by the developer. If a grant, reservation, or contract is so canceled and the unit owners other than the developer have not assumed control of the association, the association shall make a new contract or otherwise provide for maintenance, management, or operation in lieu of the canceled obligation, at the direction of the owners of not less than a majority of the units in the condominium other than the units owned by the developer.

(b) If the association operates more than one condominium and the unit owners other than the developer have not assumed control of the association, and if unit owners other than the developer own at least 75 percent of the units in a condominium operated by the association, any grant, reservation, or contract for maintenance, management, or operation of buildings containing the units in that condominium or of improvements used only by unit owners of that condominium may be canceled by concurrence of the owners of at least 75 percent of the units in the condominium other than the units owned by the developer. No grant, reservation, or contract for maintenance, management, or operation of recreational areas or any other property serving more than one condominium, and operated by more than one association, may be canceled except pursuant to paragraph (d). If a grant, reservation, or contract is canceled under this provision, the association shall provide for maintenance, management, or operation of the property in a manner consented to by the owners of not less than a majority of the units in the condominium other than the units owned by the developer.

(c) If the association operates more than one condominium and the unit owners other than the developer have assumed control of the association, the cancellation shall be by concurrence of the owners of not less than 75 percent of the total number of units in all condominiums operated by the association other than the units owned by the developer.

(d) If the owners of units in a condominium have the right to use property in common with owners of units in other condominiums and those condominiums are operated by more than one association, no grant, reservation, or contract for maintenance, management, or operation of the property serving more than one condominium may be canceled until unit owners other than the developer have assumed control of all of the associations operating the condominiums that are to be served by the recreational area or other property, after which cancellation may be effected by concurrence of the owners of not less than 75 percent of the total number of units in those condominiums other than units owned by the developer.

(e)1. Notwithstanding the provisions of this subsection, a developer may obligate an association under a lease agreement or other contractual agreement for vending equipment to be used in common by unit owners or for space at the condominium property whereupon vending equipment will be used in common by unit owners, and such lease or agreement shall not be subject to cancellation as provided herein, provided that:

a. The agreement is with an entity which is duly licensed to transact business in the state and independent of the developer. As used in this paragraph, "independent of the developer" means that the developer has no direct or indirect financial interest in the entity and is not related by blood or marriage to any person who does have a direct or indirect interest in the entity;

b. The terms and conditions of the agreement, including but not limited to the amount of rental fees and other costs, are fair and reasonable and in substantial conformity with those prevailing in agreements for similar purposes in the locality;

c. The agreement is for an initial term not exceeding 4 years or, if for a longer term, shall be enforceable for no longer than 4 years, and no renewal or extension of the agreement can be effective other than by mutual consent;

d. The vending equipment contemplated by the agreement is new and unused when originally installed on the condominium property and meets applicable nationally recognized standards for fitness and safety;

e. The association has no obligation under the agreement to maintain or repair the vending equipment, and the owner thereof is obligated to make periodic inspections (not less frequently than monthly) and to ensure that all of the same remain in good working order; and

f. The agreement contains the entire understanding of the parties with respect to the subject matters covered thereby, without the necessity of reference to, or dependence upon, any other oral or written understanding.

2. As used in this paragraph, the term "vending equipment" shall mean any machine by which a service or product is dispensed, whether such machine is operated by coin, electronic ticket, or token.

(2) Any grant or reservation made by a declaration, lease, or other document, and any contract made by an association, whether before or after assumption of control of the association by unit owners other than the developer, that provides for operation,

1146


maintenance, or management of a condominium association or property serving the unit owners of a condominium shall not be in conflict with the powers and duties of the association or the rights of the unit owners as provided in this chapter. This subsection is intended only as a clarification of existing law.

(3) Any grant or reservation made by a declaration, lease, or other document, and any contract made by an association prior to assumption of control of the association, by unit owners other than the developer, shall be fair and reasonable.

(4) It is declared that the public policy of this state prohibits the inclusion or enforcement of escalation clauses in management contracts for condominiums, and such clauses are hereby declared void for public policy. For the purposes of this section, an escalation clause is any clause in a condominium management contract which provides that the fee under the contract shall increase at the same percentage rate as any nationally recognized and conveniently available commodity or consumer price index.

(5) Any action to compel compliance with the provisions of this section or of s. 718.301 may be brought pursuant to the summary procedure provided for in s. 51.011. In any such action brought to compel compliance with the provisions of s. 718.301, the prevailing party shall be entitled to recover reasonable attorney's fees.

History.-s. 1, ch. 76-222; s. 1, ch. 77-174; s. 11, ch. 79-314.

718.3025 Agreements for operation, maintenance, or management of condominiums; specific requirements.-

(1) No written contract between a party contracting to provide maintenance or management services and an association which contract provides for operation, maintenance, or management of a condominium association or property serving the unit owners of a condominium shall be valid or enforceable unless the contract:

(a) Specifies the services, obligations, and responsibilities of the party contracting to provide maintenance or management services to the unit owners.

(b) Specifies those costs incurred in the performance of those services, obligations, or responsibilities which are to be reimbursed by the association to the party contracting to provide maintenance or management services.

(c) Provides an indication of how often each service, obligation, or responsibility is to be performed, whether stated for each service, obligation, or responsibility or in categories thereof.

(d) Specifies a minimum number of personnel to be employed by the party contracting to provide maintenance or management services for the purpose of providing service to the association.

(e) Discloses any financial or ownership interest which the developer, if the developer is in control of the association, holds with regard to the party contracting to provide maintenance or management services.

(2) In any case in which the party contracting to provide maintenance or management services fails to provide such services in accordance with the contract, the association is authorized to procure such services from some other party and shall be entitled

to collect any fees or charges paid for service performed by another party from the party contracting to provide maintenance or management services.

(3) Any services or obligations not stated on the face of the contract shall be unenforceable.

History.-s. 5, ch. 78-340; s. 12, ch. 79-314.

718.303 Obligations of owners.-(1) Each unit owner and each association shall be

governed by, and shall comply with the provisions of, this chapter, the declaration, the documents creating the association, and the association bylaws. Actions for damages or for injunctive relief, or both, for failure to comply with these provisions may be brought by the association or by a unit owner against:

(a) The association. (b) A unit owner. (c) Directors designated by the developer, for ac

tions taken by them prior to the time control of the association is assumed by unit owners other than the developer.

(d) Any director who willfully and knowingly fails to comply with these provisions.

The prevailing party is entitled to recover reasonable attorney's fees. This relief does not exclude other remedies provided by law.

(2) A provision of this chapter may not be waived if the waiver would adversely affect the rights of a unit owner or the purpose of the provision, except that unit owners or members of a board of administration may waive notice of specific meetings in writing if provided by the bylaws. Any instrument given in writing by the unit owner to an escrow agent may be relied upon by an escrow agent, whether or not such instruction and the payment of funds thereunder might constitute a waiver of any provision of this chapter.

History.-s. 1, ch. 76-222; s. 1, ch. 77-174.

718.304 Association's right to amend declaration of condominium.-

(1) If there is an omission or error in a declaration of condominium, or in other documents required by law to establish the condominium, the association may correct the error or omission by an amendment to the declaration, or the other documents required to create a condominium, in the manner provided in the declaration to amend the declaration, or, if none is provided, then by vote of a majority of the unit owners. The amendment is effective when passed and approved and a certificate of the amendment is executed and recorded as provided in s. 718.104. This procedure for amendment cannot be used if such an amendment would materially or adversely affect property rights of unit owners, unless the affected unit owners consent in writing. This subsection does not restrict the powers of the association to otherwise amend the declaration, or other documentation, but authorizes a simple process of amendment requiring a lesser vote for the purpose of curing defects, errors, or omissions when the property rights of unit owners are not materially or adversely affected.

(2) If there is an omission or error in a declaration of condominium, or other documents required to establish the condominium, which would affect the

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valid existence of the condominium and which may not be corrected by the amendment procedures in the declaration or this chapter, then the circuit courts have jurisdiction to entertain petitions of one or more of the unit owners therein, or of the association, to correct the error or omission, and the action may be a class action. The court may require that one or more methods of correcting the error or omission be submitted to the unit owners to determine the most acceptable correction. All unit owners and the association must be joined as parties to the action. Service of process on owners may be by publication, but the plaintiff shall furnish all unit owners not personally served with process with copies of the petition and final decree of the court by certified mail, return receipt requested, at their last known residence address. If an action to determine whether the declaration or other condominium documents comply with the mandatory requirements for the formation of a condominium contained in this chapter is not brought within 3 years of the filing of the declaration, the declaration and other documents shall be effective under this chapter to create a condominium, whether or not the documents substantially comply with the mandatory requirements of this chapter. However, both before and after the expiration of this 3-year period, circuit courts have jurisdiction to entertain petitions permitted under this subsection for the correction of the documentation, and other methods of amendment may be utilized to correct the errors or omissions at any time.

History.-s. 1. ch. 76-222; s. 1. ch. 77-174.

PART IV

SPECIAL TYPES OF CONDOMINIUMS

Leaseholds.

erty in accordance with the terms of the lease, provided there is no increase in rent or material increase in maintenance costs to the individual unit owner.

(2) The lease shall not contain a reservation of the right of possession or control of the leased property by the lessor or any person other than unit owners or the association, and shall not create rights to possession or use of the leased property in any parties other than the association or unit owners of the condominium to be served by the leased property, unless the reservations and rights created are conspicuously disclosed. Any provision for use of the leased property by anyone other than unit owners of the condominium to be served by the leased property shall require the other users to pay a fair and reasonable share of the maintenance and repair obligations and other exactions due from users of the leased property.

(3) The lease shall state the minimum number of unit owners that will be required, directly or indirectly, to pay the rent under the lease and the maximum number of units that will be served by the leased property. The limitation of the number of units to be served shall not preclude enlargement of the facilities leased and an increase in their capacity, if approved by the association operating the leased property after unit owners other than the developer have assumed control of the association.

(4)(a) In any action by the lessor to enforce a lien for rent payable or in any action by the association or a unit owner with respect to the obligations of the lessee or the lessor under the lease, the unit owner or the association may raise any issue or interpose any defenses, legal or equitable, that he or it may have with respect to the lessor's obligations under the lease. If the unit owner or the association initiates any action or interposes any defense other than pay-718.401

718.402

718.403

Conversion of existing condominium.

Phase condominiums.

improvements to ment of rent under the lease, the unit owner or the association shall, upon service of process upon the lessor, pay into the registry of the court any allegedly accrued rent and the rent which accrues during the

718.401 Leaseholds.-A condominium may be pendency of the proceeding, when due. If the unit created on lands held under lease or may include rec- owner or the association fails to pay the rent into the reational facilities or other common elements or com- registry of the court, it shall constitute an absolute monly used facilities on a leasehold, if, on the date waiver of the unit owner's or association's defenses the first unit is conveyed by the developer to a bona other than payment, and the lessor shall be entitled fide purchaser, the lease has an unexpired term of at to default. The unit owner or the association shall noleast 50 years. If rent under the lease is payable by tify the lessor of any deposits. When the unit owner the association or by the unit owners, the lease shall or the association has deposited the required funds include the following requirements: into the registry of the court, the lessor may apply to

(1) The leased land must be identified by a de- the court for disbursement of all or part of the funds scription that is sufficient to pass title, and the leased shown to be necessary for the payment of taxes, personal property must be identified by a general de- mortgage payments, maintenance and operating exscription of the items of personal property and the penses, and other necessary expenses incident to approximate number of each item of personal proper- maintaining and equipping the leased facilities or ty that the developer is committing to furnish for necessary for the payment of other expenses arising each room or other facility. In the alternative, the out of personal hardship resulting from the loss of personal property may be identified by a representa- rental income from the leased facilities . The court, tion as to the minimum amount of expenditure that after an evidentiary hearing, may award all or part of will be made to purchase the personal property for the funds on deposit to the lessor for such purpose. the facility. Unless the lease is of a unit, the identifi- The court shall require the lessor to post bond or othcation of the land shall be supplemented by a survey er security, as a condition to the release of funds from showing the relation of the leased land to the land in- the registry, when the value of the leased land and cluded in the common elements. This provision shall improvements, apart from the lease itself, is inadenot prohibit adding additional land or personal prop- quate to fully secure the sum of existing encum-

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brances on the leased property and the amounts released from the court registry.

(b) When the association or unit owners have deposited funds into the registry of the court pursuant to this subsection and the unit owners and association have otherwise complied with their obligations under the lease or agreement, other than paying rent into the registry of the court rather than to the lessor, the lessor cannot hold the association or unit owners in default on their rental payments, nor may the lessor file liens or initiate foreclosure proceedings against unit owners. If the lessor, in violation of this subsection, attempts such liens or foreclosures, then the lessor may be liable for damages plus attorney's fees and costs that the association or unit owners incurred in satisfying those liens or foreclosures.

(c) Nothing in this subsection shall affect litigation commenced prior to October 1, 1979.

(5) If the lease is of recreational facilities or other commonly used facilities that are not completed, rent shall not commence until some of the facilities are completed. Until all of the facilities leased are completed, rent shall be prorated and paid only for the completed facilities in the proportion that the value of the completed facilities bears to the estimated value, when completed, of all of the facilities that are leased. The facilities shall be complete when they have been constructed, finished, and equipped and are available for use.

(6)(a) A lease of recreational or other commonly used facilities entered into by the association or unit owners prior to the time the control of the association is turned over to unit owners other than the developer shall grant to the lessee an option to purchase the leased property, payable in cash, on any anniversary date of the beginning of the lease term after the 10th anniversary, at a price then determined by agreement. If there is no agreement as to the price, then the price shall be determined by arbitration.

(b) If the lessor wishes to sell his interest and has received a bona fide offer to purchase it, the lessor shall send the association and each unit owner a copy of the executed offer. For 90 days following receipt of the offer by the association or unit owners, the association or unit owners have the option to purchase the interest on the terms and conditions in the offer. The option shall be exercised, if at all, by notice in writing given to the lessor within the 90-day period. If the association or unit owners do not exercise the option, the lessor shall have the right, for a period of 60 days after the 90-day period has expired, to complete the transaction described in the offer to purchase. If for any reason such transaction is not concluded within the 60 days, the offer shall have been abandoned, and the provisions of this subsection shall be reimposed.

(c) The option shall be exercised upon approval by owners of two-thirds of the units served by the leased property.

(d) The provisions of this subsection shall not apply to a nonresidential condominium and shall not apply if the lessor is the Government of the United States or the State of Florida or any political subdivision thereof or, in the case of an underlying land lease, a person or entity which is not the developer or directly or indirectly owned or controlled by the de-

veloper and did not obtain, directly or indirectly, ownership of the leased property from the developer.

(7) The lease or a subordination agreement executed by the lessor must provide either:

(a) That any lien which encumbers a unit for rent or other moneys or exactions payable is subordinate to any mortgage held by an institutional lender, or

(b) That, upon the foreclosure of any mortgage held by an institutional lender or upon delivery of a deed in lieu of foreclosure, the lien for the unit owner's share of the rent or other exactions shall not be extinguished, but shall be foreclosed and unenforceable against the mortgagee with respect to that unit's share of the rent and other exactions which mature or become due and payable on or before the date of the final judgment of foreclosure, in the event of foreclosure, or on or before the date of delivery of the deed in lieu of foreclosure. The lien may, however, automatically and by operation of the lease or other instrument, reattach to the unit and secure the payment of the unit's proportionate share of the rent or other exactions coming due subsequent to the date of final decree of foreclosure or the date of delivery of the deed in lieu of foreclosure.

(8)(a) It is declared that the public policy of this state prohibits the inclusion or enforcement of escalation clauses in land leases or other leases or agreements for recreational facilities, land, or other commonly used facilities serving residential condominiums, and such clauses are hereby declared void for public policy. For the purposes of this section, an escalation clause is any clause in a condominium lease or agreement which provides that the rental under the lease or agreement shall increase at the same percentage rate as any nationally recognized and conveniently available commodity or consumer price index.

(b) The provisions of this subsection shall not apply if the lessor is the Government of the United States or the State of Florida or any political subdivision thereof or any agency of any political subdivision thereof.

(9) Subsections (1) through (7) of this section shall not apply to residential cooperatives created prior to January 1, 1977, which are converted to condominium ownership by the cooperative unit owners or their association after control of the association has been transferred to the unit owners if, following the conversion, the unit owners will be the same persons who were unit owners of the cooperative and no units are offered for sale or lease to the public as part of the plan of conversion.

History.- s. I, ch. 76·222; s. I, ch. 77-174; ss. 6, l a, ch. 78-340; s. I , ch. 79-166; s. 13, ch. 79-314; ss. 4, 7, ch. 80-323; s. 5, ch. 81-185.

718.402 Conversion of existing improvements to condominium.-A developer may create a condominium by converting existing, previously occupied improvements to such ownership by complying with parts I and VI of this chapter.

History.-s. I , ch. 76-222; s. 14, ch. 79-314; s. 3, ch. 80-3.

718.403 Phase condominiums.-(1) A developer may develop a condominium in

phases, if the original declaration of condominium submitting the initial phase to condominium ownership provides for and describes in detail all anticipat-

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ed phases; the impact, if any, which the completion of subsequent phases would have upon the initial phase; and the time period within which each phase must be completed.

(2) The original declaration of condominium shall describe:

(a) The land which may become part of the condominium and the land on which each phase is to be built. The descriptions shall include metes and bounds or other legal descriptions of the land for each phase, plot plans, and surveys.

(b) The number and general size of units to be included in each phase.

(c) Each unit's percentage ownership in the common elements as each phase is added.

(d) The recreation areas and facilities to be owned as common elements by all unit owners and all personal property to be provided and a description of those facilities or areas which may not be built or provided if any phase or phases are not developed and added as a part of the condominium.

(e) The membership vote and ownership in the association attributable to each unit in each phase and the results if any phase or phases are not developed and added as a part of the condominium.

(f) Whether or not time-share estates will or may be created with respect to units in any phase, and if so, the degree, quantity, nature, and extent of such estates, specifying the minimum duration of the recurring periods of rights of use, possession, or occupancy that may be established with respect to any unit.

(3) The developer shall notify owners of existing units of the commencement of, or the decision not to add, one or more additional phases. Notice shall be by certified mail addressed to each owner at the address of his unit or at his last known address.

(4) If one or more phases are not built, the units which are built are entitled to 100 percent ownership of all common elements within the phases actually developed and added as a part of the condominium.

(5) If the declaration requires the developer to convey any additional lands or facilities to the condominium after the completion of the first phase and he fails to do so within the time specified, or within a reasonable time if none is specified, then any owner of a unit or the association may enforce such obligations against the developer or bring an action against the developer for damages caused by the developer's failure to convey to the association such additional lands or facilities.

(6) Notwithstanding the provisions of s. 718.110, amendments adding phases to a condominium shall not require the execution of such amendments or consents thereto by unit owners other than the developer, unless the amendment permits the creation of time-share estates in any unit of the additional phase of the condominium and such creation is not authorized by the original declaration.

History.- s. 1, ch. 76-222; s. 7, ch. 78-328.

PART V

REGULATION AND DISCLOSURE PRIOR TO SALE OF RESIDENTIAL

CONDOMINIUMS

718.501

718.502 718.503 718.504 718.505 718.506

718.507

718.508

718.509

Powers and duties of Division of Florida Land Sales and Condominiums.

Filing prior to sale or lease. Disclosure prior to sale. Prospectus or offering circular. Good faith effort to comply. Publication of false and misleading infor

mation. Zoning and building laws, ordinances, and

regulations. Regulation by Division of Hotels and Res

taurants. Florida Condominiums Trust Fund.

718.501 Powers and duties of Division of Florida Land Sales and Condominiums.-

(1) The Division of Florida Land Sales and Condominiums of the Department of Business Regulation, referred to as the "division" in this part, in addition to other powers and duties prescribed by chapter 498, has the power to enforce and ensure compliance with the provisions of this chapter and rules promulgated pursuant hereto relating to the development, construction, sale, lease, ownership, operation, and management of residential condominium units. In performing its duties, the division shall have the following powers and duties:

(a) 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 hereunder.

(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 failure to obey a subpoena or to answer questions propounded by the investigating officer and upon reasonable notice to all persons affected thereby, 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 rule promulgated pursuant hereto has occurred, the division may institute enforcement proceedings in its own name against any developer or association, or its assignees or agents, as follows:

1. The division may permit a person whose con-

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Documents

Florida Statutes 1983, Volume 3 · 2014. 10. 1. · interested party the clerk shall issue a summons to the lienor to show cause within 20 days why his lien should not be enforced