Division of Florida Condominiums, Timeshares, and Mobile Homes
What Is A Declaratory Statement and How to Request One
Declaratory statements are formal written positions taken by the Division of Florida Condominiums, Timeshares, and Mobile Homes (division) on the laws and rules the division is authorized to enforce and interpret. These statements are binding upon the parties who join in the proceeding. Declaratory statements are governed by the Administrative Procedure Act, chapter 120, Florida Statutes. Section 120.565, Florida Statutes, provides the specific authority for state agencies to issue declaratory statements over the statutes, rules and orders within the scope of their authority. Florida Administrative Code Chapter 28-105 provides the procedures that apply to declaratory statements.
A declaratory statement is a limited administrative proceeding. The purpose of a declaratory statement is to give the division’s position before action is taken. Rule 28-105.001, Florida Administrative Code, states:
A declaratory statement is a means for resolving a controversy or answering questions or doubts concerning the applicability of any statutory provision, rule or orders over which the agency has authority. A petition for declaratory statement may be used to resolve questions or doubts as to how the statutes, rules or orders may apply to the petitioner’s particular circumstances. A declaratory statement is not the appropriate means for determining the conduct of another person.
Therefore, any person affected by specific provisions of the laws or administrative rules subject to division jurisdiction or final orders issued by the division with regard to that person’s rights, duties, or obligations may petition for a declaratory statement from the division. Requests for declaratory statements must show an actual and practical need for a declaratory statement. If you have a complaint about action that has already taken place, then the proper procedure is for you to file a complaint, or perhaps a petition for arbitration if your dispute fits within the arbitrator’s authority under section 718.1255, Florida Statutes.
The division will not be able to issue a declaratory statement on facts that are disputed or on events that have already taken place. Additionally, if other owners will be affected by a decision, then the division will not be able to issue a declaratory statement. There may be other limitations to the division’s authority to address your question by the issuance of a declaratory statement. The division will attempt to notify you of these when it acknowledges your petition. The division is required to notify the association and the developer, if one is still active, of your petition. These persons and anyone who would be substantially affected by a statement may file a response.
The division receives numerous requests for declaratory statements that are denied for various reasons. Declaratory statements are not meant to address hypothetical situations. Questions should not be asked merely for curiosity’s sake. When drafting a petition for declaratory statement, ask yourself the following questions. If all of your answers are yes, there is a greater possibility that the division will issue a declaratory statement.
- Do you have an actual and practical need for a statement?
- Does your situation deal with a present set of undisputed facts?
- Has a controversy arisen over how the law applies to the question(s) that you are asking?
- Are you depending on the law to guide proposed actions?
- Are you or your association directly involved in this question?
Any party requesting a declaratory statement who is adversely affected by the statement may appeal it within 30 days of the Agency Clerk’s date of rendition. Appeals are governed by Chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure.
If you are requesting a declaratory statement, please follow the suggested format for drafting a petition for a declaratory statement. All petitions vary to some degree, but we suggest that you follow this format in order to expedite your petition. The division will need a complete current set of your governing documents before it can review your petition.
It is important to remember that declaratory statements deal only with a specific set of circumstances. The holding of the declaratory statement is not applicable to other condominiums or cooperatives, but may provide some guidance on how the division would respond to similar situations in other associations. Before you request a statement, you may want to review the ones issued by the division that are posted on this website.
TO DETERMINE THE APPLICATION OF A PREVIOUSLY ISSUED STATEMENT TO YOUR OWN CONDOMINIUM OR COOPERATIVE ASSOCIATION, IT IS SUGGESTED THAT YOU CONTACT AN ATTORNEY OF YOUR CHOICE FOR CLARIFICATION. CHANGES IN THE LAW WILL AFFECT ANY FUTURE DECISION OF THE DIVISION ON SIMILAR ISSUES.