This is such an important topic that is often times difficult to
teach. In a nutshell however, assume the following:
1. Your condominium or HOA was created in the year
2000. That was when your declaration of condominium or
declaration of covenants was recorded.
2.
Your declaration only adopts The Florida Condominium Act
(Florida Statute 718) or The Florida Homeowner Association Act
(Florida Statute 720) as it exists on the day the declaration
was recorded. Your declaration does not contain language that
also says the declaration automatically incorporates amendments
to 718 or 720 as they are amended from time to time. This is
known as “Kaufman” language.
3. Your declaration does not allow for:
a.
Fining of unit owners;
b.
Suspending the rights of owners to vote who are
delinquent;
c.
Preventing delinquent owners from using the common areas;
d.
The association demanding the rent from the tenant of a
delinquent owner.
4.
In 2008, both 718 and 720 are amended to allow for:
a.
Fining of unit owners;
b.
Suspending the rights of owners to vote who are delinquent;
c.
Preventing delinquent owners from using the common areas;
d.
The association demanding the rent from the tenant of a
delinquent owner.
The condominium or homeowner association now wants to start
utilizing these new statutory penalties against all owners. The
question is, can they?
In sum, no they cannot. These are substantive statutes and not
merely procedural. These new laws impose new penalties on the
delinquent owners that were never contained in the original
declaration of condominium. They were not contained in the
original contract. To now allow the association to add these new
penalties to the contract would be a violation of both the
contracts clause to The United States Constitution and The
Florida Constitution.
However………..if the governing documents simply contained the
words that state the association adopts amendments to 718 or 720
“as they occur from time to time,” the association would be able
to utilize all of these new statutes because the parties were on
notice that the association would adopt new laws and their
substantive rights may be changed.
Many associations who don’t have Kaufman language in their
documents are utilizing statutes they have no right to use. If
challenged, they will lose in court and wind up paying the
defendant’s court costs and attorney’s fees.
This is an often time confusing area of the law. If you have
any concerns about whether or not your documents contain Kaufman
language, get counsel’s opinion before relying upon any statute
that was created after your governing documents were recorded.
