Terminating Condominiums According to the Florida Condominium Act: Part IV
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This is Part IV in a series of Blog posts dedicated to explaining the process for the termination of condominiums according to the Florida Condominium Act. Previous posts in this series discussed the process of termination due to economic waste, the impossibility to continue as a condominium, and the purchase of condominium property by a developer. Part III explained the required provisions within a plan of termination. This post explains the steps that must be taken to properly execute the plan of termination and what must be done after the plan is executed and in effect.
Once drafted with the required provisions as described in Part III of this series, the plan of termination must be executed in the same manner as a deed. Fla. Stat. § 718.117(9). However, prior to execution, a copy of the proposed plan must be given to all unit owners, similar to giving notice of the annual meeting. This notice must be provided no less than 14 days prior to the meeting at which the plan is to be voted upon. Id.
A unit owner may document his or her assent to the plan by signing the actual plan or by consent to or joinder in the plan in the manner of a deed. Id. The unit owners must sign the plan by at least the amount necessary to meet the requisite percentage of voting interests to approve the plan and the plan must also be signed by the termination trustee. Id. The validly executed plan, along with any consents of joinder of unit owners or mortgagees, must be recorded in the public records of the county where the condominium is located. Id. The plan is effective only upon it being recorded, or at a later date that is specified in the recorded plan. Id.
Within 30 days after the plan has been recorded, the trustee must deliver notice of recording by certified mail, return receipt requested, to all unit owners and lienors of condominium property. Fla. Stat. § 718.117(15)(a). The notice must include the book and page number of the public records in which the plan was recorded. Id. It must also state that upon written request a copy of the executed plan will be furnished and that a unit owner or lienor has the right to contest the fairness of the plan. Id. Within 90 days after the effective date of the plan, the trustee must provide a certified copy of the recorded plan to the Division of Florida Condominiums, Timeshares and Mobile Homes. Fla. Stat. § 718.117(15)(b). The Trustee must also provide the Division with the date the plan was recorded, along with the county, book and page number of the public records where the plan was recorded. Id.
If a unit owner or lienor wishes to contest the plan of termination, it can do so by initiating a summary procedure within 90 days of the plan being recorded. Fla. Stat. § 718.117(16). If a unit owner or lienor fails to contest the plan within 90 days then he or she is barred from bringing a claim against the association, trustee, or any unit owner at a later time. Id. If contested, the person contesting the plan will have the burden of proving that the apportionment of the proceeds from the sale is not fair and reasonable. Id. The court will then make the ultimate decision as to whether the plan was fair and reasonable, whether the entire plan is void for being unfair or unreasonable or whether the plan can be modified to make it fair and reasonable. Id. Stay tuned for Part V of this series, which will discuss the powers of the association and the trustee during the termination process.