DECLARATORY STATEMENTS FROM DBPR
DECLARATORY STATEMENTS, NEW FORMS AND REQUIREMENTS FROM DBPR
1. The Florida Department of Business and Professional Regulations' Division of Florida Condominiums, Mobile Homes, and Timeshares has issued a Declaratory Statement holding that under the new legislation, non-staggered two year terms for Directors are not allowed. It states that an Association with such a provision in its Bylaws must, by the time of its next annual meeting noticed under the new law, provide only for one-year terms or amend its Bylaws to provide for staggered two-year terms.
In Re: Petition for Declaratory Statement/ The Decoplage Condominium Association, Inc., DS 2008-065 December 4, 2008.
2. Declaratory Statement, In re Decoplage, clarifying that a pre-existing two year non-staggered term violates s.718.112(2)(d)1 (2008) unless ratified by an owner vote. This Declaratory Statement reaffirms the Division's position that election cycles beginning with the first notice of election that are due before October 1, 2008 are not affected by the 2008 statutory revision Of course, the number of communities whose elections are subject to challenge as a result of the retroactive effect argument rejected should be lessening by the passage of time. Of greater interest is the analysis. The Statement goes into the intent of the Legislature without first finding that there is an ambiguity in the statute. Normally, an opinion would first determine the existence of an ambiguity before undertaking the effort to determine intent, as intent is irrelevant if the text is clear and not ridiculous. There is extensive analysis in support of legislative regulation affecting existing corporations, expanding upon Woodside v. Jahrens. Note the discussion to the effect that bylaws are presumed to be procedural in nature, thus supporting a finding that elections are procedural and not substantive.
Query: what about substantive real property restrictions placed in bylaws by developers? Does the fact that the developer placed what the developer probably intended to be substantive property rights in the bylaws instead of the declaration of condominium mean those property rights are now only procedural rights subject to subsequent change by the legislature?
3. CONDO GOVERNANCE FORM NOW AVAILABLE ON DBPR WEBSITE
Beginning Jan. 1, 2009, condo sellers (who are not developers) must provide prospective buyers a disclosure from the Florida Department of Business and Professional Regulation (DBPR) which details the rights and responsibilities of condominium boards and unit owners, voting rights, meeting notices and other governance matters. This disclosure, known as the Condominium Governance Form, is now available in PDF form from the DBPR Web site:
On Dec. 30, 2008, FAR will post to its member Web site updated versions of the FAR Residential Sale and Purchase Contract: Comprehensive Addendum (FARA-10) and the Comprehensive Rider to the FAR/BAR Contract for Sale and Purchase (FBCR-10), which reference the 2009 disclosure requirement. Questions? EFFECTIVE JANUARY 1, 2009, ALL CONDO CONTRACTS SHOULD HAVE THIS FORM INCLUDED OR ATTACHED AS A RIDER TO THE CONTRACT.
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