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Real Property, Probate & Trust Law.

CS/HB 435--Trust Administration

This bill provides that when a grantor appoints trustees for particular purposes, the trustees excluded from those purposes are not liable for any consequences that result from compliance with the exercise of those purposes, regardless of the information available to the excluded trustees, except in cases of willful misconduct on the part of the directed trustee of which the excluded trustee has actual knowledge. The trustees having the power for a particular purpose shall be liable to the beneficiaries with respect to the exercise of that power. The bill further allows a trustee to pay attorney's fees and costs from trust assets unless a beneficiary applies to a court for an order to prohibit such payment. The bill requires the trustee to notify interested beneficiaries in advance of paying attorney's fees and costs from trust assets and allows sanctions against trustees who fail to comply with a court order to reimburse the trust for fees. The bill revises time limitations for the bringing of legal claims by a beneficiary against a trustee for breach of trust. The bill provides that all claims by a beneficiary against a trustee are barred upon the later of: 10 years from the date that the trust terminates, the trustee resigns or the fiduciary relationship between the trustee and the beneficiary otherwise ends if the beneficiary had actual knowledge of the existence of the trust and of their status throughout the 10-year period; 20 years after the date of the act or omission of the trustee that is complained of, if the beneficiary had actual knowledge of the existence of the trust and of their status throughout the 20-year period; or 40 years after the date the trust terminates, the trustee resigns, or the fiduciary relationship between the trustee and the beneficiary otherwise ends. Any existing applicable statute of repose is extended by 30 years when a beneficiary shows evidence that a trustee actively concealed facts supporting a cause of action. Approved by the Governor, these provisions take effect July 1, 2008 and shall apply to causes of action accruing on or after that date. Ch. 08-76, L.O.F.

CS/SB 464--Transfer Fee Covenants / Real Property

This bill provides that, in general, transfer fee covenants are void and unenforceable. This bill also provides limited exceptions that allow a transfer fee covenant, such as a fee to a homeowners' association, a fee to a nonprofit or charitable organization, or a fee imposed by the government. Approved by the Governor, these provisions take effect July 1, 2008 and shall apply to causes of action accruing on or after that date. Ch. 08-35, L.O.F.

CS/CS/HB 601--Department of Business and Professional Regulation / Condominiums & Homeowners Associations

This bill revises and clarifies various insurance requirements for condominiums, maintaining the current requirement for adequate insurance but using the term "adequate hazard insurance" to specify the type of insurance that is required, and keeping the current provision that permits 3 or more communities to obtain insurance for an amount equal to the probable maximum loss for a 250-year windstorm event. The bill specifies that a director of a condominium who abstains from voting on any action taken on any association corporate matter shall be presumed to have taken no position with regard to the action. The bill provides that condominium expenses or items required by the federal, state or local government, including fire safety equipment and water and sewer services, are common expenses whether or not identified as common expenses in the declaration of condominium, articles of incorporation, or the bylaws of the association. The bill amends requirements to include a condominium unit owner's designee or a mortgagee designee among the persons that are entitled, upon request, to a certificate signed by an officer regarding the assessments owed by the unit owner to the association. The bill provides that the fee for the certificate must be set forth in the certificate. The bill provides that the distribution of any sale proceeds to purchase money lienholders on units must not exceed a unit's share of the proceeds. The bill creates estoppel certificates for homeowners' associations. The bill requires that the homeowners' associations must provide a certificate signed by an officer or agent of the association stating all of the assessments and other moneys that are owed to the association by the parcel owner. This legislation contains numerous other modifications relating to programs under the Department of Business and Professional Regulation, not all summarized here. Subject to the Governor's veto powers, the effective date of this bill is July 1, 2008 except as otherwise provided.

CS/CS/HB 679--Residential Properties

This bill: removes the requirement that the Department of Health regulate swimming pools owned by a homeowners association with 32 or less parcels; requires additional disclosure to members of a homeowners association if the association budget does not include deferred expenditures; prohibits a director, officer or committee member of a homeowners association from receiving compensation for service to the association (however, reimbursement for out of pocket expenses, recovery of insurance proceeds, or compensation authorized in advance by a majority vote of the owners are not prohibited); provides that a fine greater than $1,000 by a homeowners association against a parcel owner may become a lien on the property; requires that an elected director of a condominium association or a homeowners association must certify in writing within 30 days of being elected that he or she has read the governing documents of the association as well as the relevant statutes; effective July 1, 2009, provides for pre-suit mediation or pre-suit arbitration of disputes between homeowners associations and a parcel owner or owners and parcel owners within the same homeowners association before a complaint may be filed in court; provides that board meetings must be held within 45 miles of the condominium property unless the bylaws provide otherwise; prohibits co-owners from serving at the same time on the board of administration of an association of 10 or more units; provides that persons may not serve on the board if they were convicted of a crime that would be a felony in Florida and have not had their civil rights restored for at least 5 years; requires a condominium association of 10 or more units to utilize the statutory election procedures; limits condominium association board members to 2-year terms; and provides that 3 or more condominium associations may form a self-insurance fund to cover insurance deductibles. Subject to the Governor's veto powers, the effective date of all other provisions of this bill is July 1, 2008.

CS/HB 937--Title Insurance

This bill creates the Florida 2008 Title Insurance Study Advisory Council to undertake a comprehensive examination of the title insurance system in Florida and make findings and recommendations in a final report to the Governor, Speaker of the House of Representatives, and President of the Senate on or before December 31, 2009. The council is composed of 21 members, with representatives from government, title insurers, insurance agents, banking and real estate interests, and attorneys--and is chaired by the Governor or designee, with the Chief Financial Officer or designee serving as vice chair. To assist the council, the Office of Program Policy Analysis and Government Accountability is required to conduct an independent review of the historical development of the title insurance industry in Florida and the current regulatory framework, and report its findings to the council by September 30, 2008. The council must hold its first meeting by August 1, 2008, with all meetings to be held in Tallahassee. Subject to the Governor's veto powers, the effective date of this bill is upon becoming a law.

CS/HB 1105--Community Associations

This bill provides for notice of a unit or parcel owner's intent to file a petition for the appointment of a receiver, to all unit owners or parcel owners of a condominium, cooperative or homeowners association at least 30 days before the filing of the petition. The bill also requires additional notice to unit owners or parcel owners should the petition be granted. Condominium, cooperative and homeowners associations may impose a lien--which may be foreclosed--against an owner for unpaid assessments. Current law requires 30 days' notice before the filing of a lien against a member of a homeowners' association. This bill requires condominium associations and cooperative associations to similarly give 30 days' notice of intent to file a lien. Subject to the Governor's veto powers, the effective date of this bill is July 1, 2008.

HB 1489--Residential Tenancies

This bill amends the Florida Residential Landlord and Tenant Act to permit residential lease agreements to impose an early termination fee or liquidated damages on tenants who terminate a lease before its expiration. The total liquidated damages or any early termination fee cannot exceed 2 months' rent and is in addition to any unpaid rent and other charges accrued through the end of the month in which the landlord takes possession of the dwelling unit, plus charges for any damages to the dwelling unit. Subject to the Governor's veto powers, the effective date of this bill is upon becoming a law.

SB 1986--Homeowners Associations / Lien Claims

This bill provides forms and procedures for notice of a claim by a homeowners' association and an objection to such a claim--the filing of an objection obligates the association to foreclose the lien within 90 days or, failing that, to waive the right to foreclose on that lien. The legislation also provides that the holder of a first mortgage who forecloses on the mortgage is liable for up to 12 months of assessments or 1% of the original mortgage amount, whichever is less, in past due assessments. The bill gives further direction and includes a form for use in qualifying offers. Subject to the Governor's veto powers, the effective date of this bill is July 1, 2008.

HB 7019--Real Property Transfer Returns

This bill eliminates the requirement to file Form DR-219--relating to the transfer of an interest in real property--with the clerk of the circuit court. Because filing of the form would no longer be required, the bill further eliminates the clerk's authorization to deduct 1.0 percent of the tax paid on deeds as compensation for the cost of processing the return. In March 2008, the Revenue Estimating Conference determined that eliminating the form and filing would increase state revenues during FY 2008-2009 by approximately $8.8 million, and would result in a $35,000 cost savings based on reductions in printing, postage, and storage of the forms. The effective date of this bill is June 1, 2008.
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Publication:Florida Bar News
Date:Jun 15, 2008
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