Section 61B-40.005 - Guarantee of Common Expenses Under Sections 718.116(9) and 721.15(2), Florida Statutes(1) Establishment of the guarantee. If a guarantee is not established in the timeshare documents any agreement establishing a guarantee shall be effective only upon the approval of a majority of the non-developer timeshare purchasers. Such approval shall be documented in the books and financial records of the timeshare plan.(2) Guarantee period. The guarantee period shall be indicated by a specific beginning and ending date. The guarantee may provide for different dollar amounts for different fiscal years within a guarantee period. (a) The ending date shall be the same for all of the purchasers including the purchasers in different phases of phase condominiums; and(b) The guarantee may provide for more than one fiscal year with different dollar amounts for each such fiscal year.(3) Authorized level of assessments. The stated dollar amount of the guarantee shall be an exact dollar amount for each use availability period or ownership interest as identified in the timeshare documents. Regardless of the stated dollar amount of the guarantee, assessments charged to a purchaser pursuant to an annual budget shall not exceed the purchaser's obligation based on the adopted budget and the purchaser's proportional obligation as stated in the timeshare documents.(4) Cash funding requirements during the guarantee. The cash payments required from the guarantor during the guarantee period shall be determined as follows: (a) If at any time during the guarantee period the funds of the timeshare plan are not sufficient to permit full and timely payment of all common expenses, including the full and timely funding of reserves unless properly waived, the guarantor shall advance sufficient cash to the managing entity at the time such payments are due; and(b) Capital contributions received from purchasers shall not be used for the payment of common expenses.(5) Calculation of guarantor's final obligation. The guarantor's total financial obligation at the end of the guarantee period shall be determined on the accrual basis. Such financial obligation shall not be reduced by contributions of real or personal property. The guarantor shall fund the total common expenses incurred during the guarantee period including the full funding of reserves as included on the adopted budget, less the following items: (a) Depreciation expense on real property;(b) Depreciation expense on personal property contributed by the guarantor;(c) For guarantee agreements established on or subsequent to June 14, 1995, and for guarantee agreements established prior to June 14, 1995 in which no method for calculating the guarantee was specified, the total revenues of the timeshare plan regardless of whether the actual level of assessments was less than the maximum guaranteed amount. For guarantee agreements established prior to June 14, 1995, in which a method for calculating the guarantee was specified, the maintenance assessment revenues of the timeshare plan regardless of whether the actual level of assessments was less than the maximum guaranteed amount; and(d) If a guarantee pursuant to Section 721.15(2), F.S., existed within a multicondominium association created prior to July 1, 2000, the guarantor's financial obligation to the association shall be calculated as provided in subsections (a) through (c) for each condominium in which the guarantee existed. If a guarantee pursuant to Section 721.15(2), F.S., existed within a multicondominium association created after June 30, 2000, or a multicondominium association that created separate ownership interests of the common surplus of the association for each purchaser as provided in Sections 718.104(4)(h) and 718.110(12), F.S., the guarantor's financial obligation to the association shall include the amount calculated pursuant to Section 718.116(9)(c), F.S., except that the calculation shall include total revenues as provided in Section 721.15(2), F.S., rather than the maintenance fee revenues as provided in Section 718.116(9)(c), F.S.Fla. Admin. Code Ann. R. 61B-40.005
Specific Authority 718.501(1)(f), 721.03(2), 721.13(3)(d)3., 721.26(6) FS. Law Implemented 718.116(9), 721.15(2) FS.
New 2-5-96, Amended 12-18-01.New 2-5-96, Amended 12-18-01.