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BEFORE YOU TAKE AWAY SOMEONE’S RIGHT TO VOTE
By
Eric Glazer, Esq.
Published August 30, 2021
About ten years ago I got my butt
kicked in a Condominium case before the Florida Supreme Court.
The name of the case is
Cohn v. Grand Condo. Ass'n, Inc.,
62 So. 3d 1120, 1121 (Fla. 2011). The Grand was a large mixed
use condo with 1,200 units, built in 1986. 800 units were
residential and 400 were commercial. The bylaws allowed the
commercial owners to elect a majority of the board. Twenty-one
years later, in 2007, a new law was passed that says despite
what the bylaws said, if residential units outnumber the
commercial units, the residential unit owners elect a majority
of the Board. The commercial unit owners appealed, stating that
this is unconstitutional as it violates the contracts clause.
The Florida Supreme Court really made the case very simple. It
asked; do the governing documents adopt the Florida Condominium
statutes as they exist in 1986 when the condo was built, or do
they also adopt amendments to The Florida Statutes as they occur
from time to time? Since the governing docs at The Grand only
adopted the 1986 statute and there was no Kaufman or
as amended from time to time language, applying the statute
at The Grand would be considered unconstitutional.
In my classes, I always taught that the holding in the Grand has
wide reaching effect and that Boards should be careful about
using a statute to take the rights of owners away, if your
governing documents pre-date the statute and you don’t have
Kaufman language or as amended from time to time
language.
A new case from Florida’s 3rd DCA agrees with me.
In De Soleil South Beach Residential Condominium Association,
Inc. v. De Soleil South Beach Association, Inc., 2021 WL
2212867, at *4 (Fla.App. 3 Dist., 2021) the court said that
it was error for the association to suspend the voting rights of
delinquent owners, where the
Declaration of Condominium at issue here was recorded and became
effective in 2006. The Condominium Act, Section 718.303, Florida
Statutes, was amended in 2010 to add subsection (5), for the
first time permitting an association to “suspend the voting
rights of a member due to nonpayment of any monetary
obligation.” Prior to that amendment, the Condominium Act did
not give an association that right or remedy to impair or
suspend the voting rights of its members for nonpayment and the
declaration of condominium did not contain Kaufman
language.
It is imperative that Board members know if their documents
contain the magic words. If they don’t, you may not have all
the rights and remedies at your disposal that you think you do.
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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 that airs at 11:00 a.m.
each Sunday on 850 WFTL.
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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