Two weeks I spoke about a case I argued before The Florida
Supreme Court in 2011 called Cohn v. The Grand
Condominium. In that case, the minority commercial
unit owners at The Grand Condominium challenged a new
Florida statute that took away their rights under the bylaws
and declaration to elect a majority of the Board of
Directors. On appeal, 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 and could not be
applied there.
As I said…….It was easy to see that if The Florida Supreme
Court ruled against Cohn, the court would set up a
bizarre system where new laws would apply in some
condominiums and not others and it would depend upon which
condominiums have “as amended from time to time” language
and which do not. There could be 10 condominiums all on the
same block and each one could be governed by a different set
of laws, depending upon when the condominium was built and
which ones do and do not have as amended from time to
time language in their governing documents.
Again, that’s the system The Florida Supreme Court put in
place. That’s what we have today. I also said “Ask a
Florida legislator if this is what they thought or knew when
they passed these new laws that they believed would protect
the lives of Florida citizens after The Champlain Towers.
Do you think they thought it may only apply to few, if any,
Floridians?” Tragic.
My partner Richard Sachs may have a good idea to resolve
this Kaufman Language confusion, at least for condominiums,
co-ops and HOAs built since 1991. All of these communities
incorporated under Florida Statute 607 or 617 when they came
into existence.
Florida Statute
617.0102 and 607.0102 stated at that time and states
to this very day:
Reservation of power to amend or repeal.—The
Legislature has the power to amend or repeal all or part of
this act at any time, and all domestic and foreign
corporations subject to this act shall be governed by the
amendment or repeal.
Therefore, if a simple amendment was made to the above
statute(s) to say:
all associations governed under Florida Statutes 718, 719
and 720 are bound to said statutes as they may exist from
time to time.
Every association would obviously be bound to the current
statutes and all amendments to those statutes regardless of
whether or not they have “as amended from time to time”
language in their governing documents.
This is a great idea that The Florida Legislature must
consider during the next legislative session if they want
all condominiums, HOAs and co-ops to be forced to follow
the new laws that they pass and are so vital for the health,
welfare and safety of all of our residents.
Of course, even that could be challenged, but in light of
the provisions above it’s this attorney’s opinion that it
would be a difficult road to hoe.
