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CONDO DISCLOSURE MANDATED IN FLORIDA

Florida's legislature has been concerned with condominium regulation for almost 50 years. Florida's first Condominium Act was adopted in 1963 and has been amended almost every year since. The legislature's original focus was on developers. Legislation started with efforts to smooth development and sales and quickly moved to regulation to protect purchasers. Florida's Condominium Act now requires filing and approval of a comprehensive sale prospectus before binding contracts can be entered by developers for sale of residential condominiums. The Act gives buyers 15 days after they get all required developer disclosures within which they can terminate their purchase contract with impunity.

In 1992, it occurred to the legislature that developers had sold a lot of residential condominiums in Florida and many of those units were being sold again. No disclosure was required for resale. Expanding its quest to protect buyers of residential condominiums, the legislature amended the Act to also require non-developer disclosure.

Section 503 (2) of the Act mandates each residential unit owner who is not a developer comply with its non-developer disclosure requirements. This extension seems a natural addition to the legislature's effort to maintain the condominium industry by making buyers feel safe when they buy a residential condominium. To some, it appears to be too much regulation and government involvement in the area where a buyer could easily protect themselves. Others view the disclosure requirement as welcome protection. Non-developers and even condominium associations must now meet the disclosure requirements applicable to resale condominiums.

Disclosure required from a non-developer is not as broad as that required from a developer. The resale purchaser of a residential condominium is entitled, at the seller's expense, to a current copy of the declaration of condominium, articles of incorporation of the association, bylaws and rules of the association, most recent year-end financial statement for the association and the document entitled "Frequently Asked Questions and Answers," which is often referred to as the Q&A sheet. A buyer is also entitled to copy of a governance form. The seller does not have to give the buyer the documents unless the buyer requests them.

The governance form is prepared by the Florida Division of Condominiums, Timeshares and Mobile Homes. It summarizes various aspects of condominium governance in generic fashion.

The Q&A sheet form promulgated by the Florida Division of Condominiums, Timeshares and Mobile Homes. The Q&A sheet must be prepared by the condominium association and include 7 questions. It is a summary of the issues the State feels are most important to a condominium buyer and is intended to provide the buyer with an easy to read version of what might otherwise require a lot of work to dig out of the other condominium documents. The questions include voting rights, restrictions on right to use or lease, amount of assessments, whether the owner has to be a member in any other association or pay rent or use fees for recreational or other facilities and if the association is involved in court action in which it could face liability of $100,000.

The Q&A sheet confirms what many thought, to wit: the required condominium disclosure is more than a typical person will read or understand. It requires an association to summarize 7 important aspects of condominium ownership for that particular condominium in the hope that a prospective purchaser will at least read the summary. Most condominium purchasers do not even read the Q&A sheet let alone the volume of documents required by the statute. Some argue that requiring the Q&A sheet alone would eliminate the problem of buyers being overwhelmed by documents and not reading any of them.

Florida's legislature did not stop with requiring documents be made available to buyers. Florida's Condominium Act also mandates notice be in all resale contracts in conspicuous type that a buyer has the right to the documents or that the buyer has been provided all of the required documents at least 3 days prior to signing the contract. The notice must also advise that a buyer may terminate the contract within 3 days, excluding Saturdays, Sundays and legal holidays, after the buyer receives all of the required documents. If the documents are given to the buyer at least 3 days before the buyer signs the contract, the buyer has no right to terminate under the statute. The 3 day right to terminate cannot be waived, except by closing. Although the seller is to provide copy of the governance form, failure to receive the document does not give the buyer a right to terminate.

Some of these documents are recorded in the office of the clerk of courts in the county where the condominium is located, as part of the Public Records. Few associations record their rules and virtually none record year-end financial statement or Frequently Asked Questions and Answers. The latter documents are only to be found with the association or occasionally with a seller.

Section 111 of Florida's Condominium Act requires associations maintain copies of all the required documents on the condominium property to ensure their availability to unit owners and prospective purchasers. Most associations don't comply with that requirement and the documents must be obtained through the management company. The association may charge its actual cost for preparing and furnishing the documents to those requesting the documents. That means a buyer can end up paying, even though the statute says the documents are to be provided at the seller's expense.

Because a buyer has 3 days from receipt of the documents within which to terminate a contract, most sellers do their best to get the documents to a buyer quickly. That, too, can prove a challenge. Some associations do not provide a complete package. Others include a budget rather than a financial statement and a few did not even have the Q&A sheet. If the package is incomplete, buyers 3 days to terminate never starts to run.

Delivery can also be problematic. The Act makes it clear the documents must be delivered to the buyer and not to the buyer's agent or Realtor. Even delivery to the buyer's attorney is not sufficient. Since most buyers in this area are out of town, sellers may have trouble proving the buyer actually received the documents. Many sellers ask the buyer to sign a receipt. A buyer signed receipt will not be set aside by a court even if the buyer did not receive all of the documents. A buyer should make sure the buyer actually received all of the documents before signing a receipt.

The Act mandates disclosure, but only of the buyer request the condominium documents in writing. That means it is important for buyer make the request. It is also important a seller provide the buyer with the required documents, even if the buyer does not request, because of the buyer has a 3 day right to terminate that only starts when the buyer is provided the documents. Florida's legislature has crafted a disclosure procedure under which both parties have an interest in making sure a buyer gets disclosure documents and, for that reason, the statute works quite well.

William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.