I got this back from a regulation specialist...(Warning..it is long). Does anyone make anything of this???
Thank you for your e-mail to the Department of Business and Professional Regulation. On behalf of the department, the Customer Contact Center appreciates the opportunity to assist you.
Timeshares in Florida are governed by the requirements of Chapter 721, Florida Statutes (F.S.), and the timeshare administrative rules. The department's Division of Condominiums, Timeshares and Mobile Homes regulates the creation, operation, sale and marketing of Florida timeshare plans pursuant to Chapter 721, F.S., also known as the "Florida Vacation Plan and Timesharing Act." Please be aware that the department cannot render legal advice or give opinions; however, the Customer Contact Center can guide customers to those portions of the statute relevant to their queries.
721.15 Assessments for common expenses.--
(1)(a) Until a managing entity is created or provided pursuant to s. 721.13, the developer shall pay all common expenses. The timeshare instrument shall provide for the allocation of common expenses among all timeshare units or timeshare interests on a reasonable basis, including timeshare interests owned or not yet sold by the developer. The timeshare instrument may provide that the common expenses allocated may differ between those timeshare units that are part of the timeshare plan and those units that are not part of the timeshare plan; however, the different proportion of expenses must be based upon reasonable differences in the benefit provided to each. The timeshare instrument shall allocate common expenses to timeshare interests owned or not yet sold by the developer on the same basis that common expenses are allocated to similar or equivalent timeshare interests sold to purchasers.
(b) Notwithstanding any provision of chapter 718 or chapter 719 to the contrary, the allocation of total common expenses for a condominium or a cooperative timeshare plan may vary on any reasonable basis, including, but not limited to, timeshare unit size, timeshare unit type, timeshare unit location, specific identification, or a combination of these factors, if the percentage interest in the common elements attributable to each timeshare condominium parcel or timeshare cooperative parcel equals the share of the total common expenses allocable to that parcel. The share of a timeshare interest in the common expenses allocable to the timeshare condominium parcel or the timeshare cooperative parcel containing such interest may vary on any reasonable basis if the timeshare interest's share of its parcel's common expense allocation is equal to that timeshare interest's share of the percentage interest in common elements attributable to such parcel.
(2)(a) After the creation or provision of a managing entity, the managing entity shall make an annual assessment against each purchaser for the payment of common expenses, based on the projected annual budget, in the amount specified by the contract between the seller and the purchaser or in the timeshare instrument.
(b) No owner of a timeshare interest may be excused from the payment of her or his share of the common expenses unless all owners are likewise excused from payment, except that the developer may be excused from the payment of her or his share of the common expenses which would have been assessed against her or his timeshare interests during a stated period of time during which the developer has guaranteed to each purchaser in the timeshare instrument, or by agreement between the developer and a majority of the owners of timeshare interests other than the developer, that the assessment for common expenses imposed upon the owners would not increase over a stated dollar amount. In the event of such a guarantee, the developer is obligated to pay all common expenses incurred during the guarantee period in excess of the total revenues of the timeshare plan. Notwithstanding this limitation, if a developer-controlled owners' association has maintained all insurance coverages required by s. 721.165, the common expenses incurred during the guarantee period resulting from a natural disaster or an act of God, which are not covered by insurance proceeds from the insurance maintained by the owners' association, may be assessed against all purchasers owning timeshare interests on the date of such natural disaster or act of God, and their successors and assigns, including the developer with respect to timeshare interests owned by the developer. In the event of such an assessment, all timeshare interests shall be assessed in accordance with their ownership interest as required by paragraph (1)(a).
(c) For the purpose of calculating the obligation of a developer under a guarantee pursuant to paragraph (b), depreciation expenses related to real property shall be excluded from common expenses incurred during the guarantee period, except that for real property that is used for the production of fees, revenues, or other income, depreciation expenses shall be excluded only to the extent that they exceed the net income from the production of such fees, revenues, or other income.
(d) A guarantee pursuant to paragraph (b) may provide that the developer may extend or increase the guarantee for one or more additional stated periods.
(3) Delinquent assessments may bear interest at the highest rate permitted by law or at some lesser rate established by the managing entity. In addition to such interest, the managing entity may charge an administrative late fee in an amount not to exceed $25 for each delinquent assessment. Any costs of collection, including reasonable collection agency fees and reasonable attorney's fees, incurred in the collection of a delinquent assessment shall be paid by the purchaser and shall be secured by a lien in favor of the managing entity upon the timeshare interest with respect to which the delinquent assessment has been incurred; however, in the event that a managing entity turns the matter over to a collection agency, the managing entity must advise the purchaser at least 60 days prior to turning the matter over to the collection agency that the purchaser may be liable for the fees of the collection agency and that a lien may result therefrom.
(4) Unless otherwise specified in the contract between the seller and the purchaser, any common expenses benefiting fewer than all purchasers shall be assessed only against those purchasers benefited.
(5) Any assessments for common expenses which have not been spent for common expenses during the year for which such assessments were made shall be shown as an item on the annual budget.
(6) Notwithstanding any contrary requirements of s. 718.112(2)(g) or s. 719.106(1)(g), for timeshare plans subject to this chapter, assessments against purchasers need not be made more frequently than annually.
(7) A purchaser, regardless of how her or his timeshare estate or timeshare license has been acquired, including a purchaser at a judicial sale, is personally liable for all assessments for common expenses which come due while the purchaser is the owner of such interest. A successor in interest is jointly and severally liable with her or his predecessor in interest for all unpaid assessments against such predecessor up to the time of transfer of the timeshare interest to such successor without prejudice to any right a successor in interest may have to recover from her or his predecessor in interest any amounts assessed against such predecessor and paid by such successor. The predecessor in interest shall provide the managing entity with a copy of the recorded deed of conveyance if the interest is a timeshare estate or a copy of the instrument of transfer if the interest is a timeshare license, containing the name and mailing address of the successor in interest within 15 days after the date of transfer. The managing entity shall not be liable to any person for any inaccuracy in the books and records of the timeshare plan arising from the failure of the predecessor in interest to timely and correctly notify the managing entity of the name and mailing address of the successor in interest.
(8) Notwithstanding the provisions of subsection (7), a first mortgagee or its successor or assignee who acquires title to a timeshare interest as a result of the foreclosure of the mortgage or by deed in lieu of foreclosure of the mortgage shall be exempt from liability for all unpaid assessments attributable to the timeshare interest or chargeable to the previous owner which came due prior to acquisition of title by the first mortgagee.
(9)(a) Anything contained in chapter 718 or chapter 719 to the contrary notwithstanding, the managing entity of a timeshare plan shall not commingle operating funds with reserve funds; however, the managing entity may maintain operating and reserve funds within a single account for a period not to exceed 30 days after the date on which the managing entity received payment of such funds.
(b) Anything contained in chapter 718 or chapter 719 to the contrary notwithstanding, a managing entity which serves as managing entity of more than one timeshare plan, or of more than one component site pursuant to part II, shall not commingle the common expense funds of any one timeshare plan or component site with the common expense funds of any other timeshare plan or component site. However, the managing entity may maintain common expense funds of multiple timeshare plans or multiple component sites within a single account for a period not to exceed 30 days after the date on which the managing entity received payment of such funds.
(10) This section shall not apply to personal property timeshare plans.
721.16 Liens for overdue assessments; liens for labor performed on, or materials furnished to, a timeshare unit.--
(1) The managing entity has a lien on a timeshare interest for any assessment levied against that timeshare interest from the date such assessment becomes due. The managing entity also has a lien on a timeshare interest of any purchaser for the cost of any maintenance, repairs, or replacement resulting from an act of such purchaser or purchaser's guest that results in damage to the timeshare property or facilities made available to the purchasers.
(2) The managing entity may bring an action in its name to foreclose a lien under subsection (1) 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.
(3) The lien is effective from the date of recording a claim of lien in the public records of the county or counties in which the accommodations and facilities constituting the timeshare plan are located. The claim of lien shall state the name of the timeshare plan and identify the timeshare interest for which the lien is effective, state the name of the purchaser, state the assessment amount due, and state the due dates. Notwithstanding any provision of s. 718.116(5)(a) or s. 719.108(4) to the contrary, the lien is effective until satisfied or until 5 years have expired after the date the claim of lien is recorded unless, within that time, an action to enforce the lien is commenced pursuant to subsection (2). A claim of lien for assessments may include only assessments which are due when the claim is recorded. A claim of lien shall be signed and acknowledged by an officer or agent of the managing entity. Upon full payment, the person making the payment is entitled to receive a satisfaction of the lien.
(4) A judgment in any action or suit brought under this section shall include costs and reasonable attorney's fees for the prevailing party.
(5) Labor performed on a timeshare unit, or materials furnished to a timeshare unit, shall not be the basis for the filing of a lien pursuant to part I of chapter 713, the Construction Lien Law, against the timeshare unit of any timeshare-period owner not expressly consenting to or requesting the labor or materials.
(6) This section shall not apply to personal property timeshare plans.
Again, thank you again for writing. You may view the Florida Vacation Plan and Timesharing Act, the timeshare administrative rules, and other educational material on-line at:
http://www.myflorida.com/dbpr/lsc/timeshare.html. f you have any additional questions or concerns, please contact the department's Customer Contact Center by calling (850) 488-1122.
Sincerely,
Sarah M. Sanders
Regulatory Specialist III
Customer Contact Center
Department of Business and Professional Regulation
