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NEW ARBITRATION RULING SENDS SHOCKWAVES TO ALL COMMUNITY
ASSOCIATIONS REGARDING ELECTIONS
By
Eric Glazer, Esq.
Published May 27, 2024
In 2011, I argued a case in front of The Supreme Court of
Florida called
Cohn v. The Grand Condominium. Here’s a quick
summary of the facts:
The Grand is a large condo building built in 1986 in Dade
County. The declaration of condominium was recorded in 1986.
It contains 1,200 units. 800 of the units are residential. 400
of the units are commercial. Some of you may know this very
large condominium. The residential units are shared with hotel
units and many stores for shopping.
Despite the fact that the residential units outnumber the
commercial units, 800 to 400, the bylaws of The Grand allow the
commercial unit owners to elect a majority of the Board of
Directors. Sounds unfair? Well, The Florida Legislature thought
this was unfair too. So, 19 years later, in 2005 The Florida
Legislature passed a law that said despite what the governing
documents say, if in a condominium, the residential units
outnumber the commercial units, the residential unit owners get
to elect a majority of the Board of Directors.
The commercial unit owners appealed and The Florida Supreme
Court said that since this new law impaired the contractual
voting rights of the commercial unit owners, it could only apply
at The Grand if the declaration contained Kaufman
language or language which put the parties on notice that
future changes to Florida Statute 718 (The Florida Condominium
Act) would automatically apply at The Grand. Unfortunately for
the residential unit owners, the declaration for The Grand
Condominium only adopted The Florida Condominium Act when the
Declaration of Condominium was filed in 1986. There was no “and
as amended from time to time” language. Therefore, the court
held that as applied to The Grand Condominium, this statute
would be unconstitutional there.
Now fast forward to 2024 and we have the case of
Maureen Short v.
Windhover Condominium 2024-00-4504. In this
case, the association argued that pursuant to Florida Statute
718.112 (2)(d)4.a in order for a condominium election to be
valid, only 20 % of the eligible voters must participate. Windhover
is a 132 unit condominium. 20% equals 26. However a “quorum” of
owners would be 68.
The arbitrator ruled that because there was no “as amended from
time” language in the original bylaws, and that voting rights
are “substantive rights” the subsequent 20% law does not come
into play and we need to look at the statutes that existed when
the condominium was built in 1963! The statutes that existed in
1963 said the election gets decided by the terms of the bylaws.
The bylaws required a quorum at the annual meetings in order to
have an election, meaning persons entitled to cast a majority of
the votes or 68!
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About
HOA & Condo Blog
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Eric Glazer graduated
from the University of Miami School of Law in 1992 after
receiving a B.A. from NYU. He has practiced community
association law for three decades and is the owner of
Glazer and Sachs, P.A. a five attorney law firm with
offices in Fort Lauderdale and Orlando.
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Eric is Board Certified by The Florida Bar in
Condominium and Planned Development Law.
Since 2009, Eric
has been the host of Condo Craze and HOAs, a weekly one-hour
radio show airing at 11 a.m. each Sunday on 850 WFTL. Recently,
he moved the show to YouTube, transforming it into a more
dynamic and interactive experience. This move not only allows
viewers to engage in live chats with Eric and other participants
but also enables a broader audience to access free advice,
making valuable insights more widely available.
See:
www.condocrazeandhoas.com.
Eric is the first attorney in the State of
Florida that designed a course that certifies condominium and
HOA residents as eligible to serve on a Board of Directors and
has now certified more than 20,000 Floridians all across the
state. He is certified as a Circuit Court Mediator by The
Florida Supreme Court and has mediated dozens of disputes
between associations and unit owners. Eric also devotes
significant time to advancing legislation in the best interest
of Florida community association members.
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