Originally Published in The FLORIDA BAR JOURNAL
Glazer and Louis Goetz
September 3, 2015
When representing a Florida condominium association, one
interacts with many laws and other sources of authority. These include F.S. Ch.
718 (Condominium Act) and F.S. Ch. 617 (Not-For-Profit Corporation Act). Counsel
must also consult the governing documents of an association, which include the
declaration of condominium, the bylaws, the articles of incorporation, and the
rules and regulations. Arbitration decisions involving associations are
routinely entered by arbitrators employed by the Department of Business and
Professional Regulation. There are even requirements and guidance provided in
the Florida Administrative Code. Decisions are handed down by our circuit courts
of appeal each Wednesday and occasionally, on a Thursday, the Florida Supreme
Court will decide a condominium law issue.
A few years ago, our firm argued the Cohn v. The Grand Condominium
Association, Inc., 62 So. 3d 1120 (Fla. 3d DCA 2009), case before the
Florida Supreme Court. It was an interesting issue. The Grand is truly a unique
condominium. It consists of approximately 1,200 units, and 800 units are owned
by the residents who live there. The other 400 units are commercial units
consisting of hotel rooms and commercial stores. Even though the residents
outnumber the nonresidents two to one, the bylaws of the Grand Condominium
allowed the commercial unit owners the right to elect a majority of the
association’s board of directors. Needless to say, that seemed unfair to the
residential unit owners. In 2007, in an attempt to address the perceived problem
of voting disparity raised by mixed-use projects, such as Grand Condominium, the
Florida Legislature enacted F.S. §718.404. 1
The statute provides that, regardless of the terms of the governing documents,
in a mixed-use condominium in which the number of residential units exceeds the
number of commercial units, the owners of the residential units must be entitled
to vote for a majority of the members of the board of directors of a condominium
In the Grand Condominium case, the commercial unit owners challenged this new
statute on grounds that it violated the contracts clause of the Florida
Constitution. They argued that they had a vested right, pursuant to the
declaration and bylaws, to elect a majority of the board and that no law could
impair those vested rights. Agreeing with the commercial unit owners, the
Florida Supreme Court struck down this new law as applied to the Grand
Condominium for one very specific reason: The declaration of the Grand adopted
the Condominium Act as it existed when the condominium was built in 1986, and
did not contain any provision that incorporated future legislative enactments by
reference. So, according to the contracts clause, the new law could not affect
the voting rights provisions of the Grand’s declaration.
That would not have been the case, however, if the Grand’s declaration had
incorporated not only the Condominium Act as it existed when its declaration was
recorded, but also “as it may be amended from time to time,” or words of similar
import. Had these magic words been included in the Grand’s declaration of
condominium, the newly enacted provisions of §718.404 would have applied, and
the residential unit owners would today be electing a majority of the board of
There remains confusion, however, regarding how to determine which new statutes
apply to a given set of projects governing documents. Declarations of
condominium, cooperative documents, and declarations of covenants and
restrictions are contracts between community associations and their members that
govern the relationships between them and are covenants running with the land.
2 Accordingly, a certain degree of contract interpretation must be
utilized when reviewing such governing documents to determine what is required
by applicable law and how such laws affect the rights of all parties involved.
Community associations generally have two types of rights: statutory rights
(e.g., the right to inspect records) and vested rights found in the governing
documents (e.g., the right to vote for directors). A vested right must be more
than a mere expectation based on an anticipation of the continuance of an
existing law; it must have become an entitlement, legal, or equitable.3
The contracts clause 4 of the Florida Constitution establishes the
general rule that the legislature is prohibited from enacting any law that
impairs vested rights under a declaration. 5 Simply stated, as a general
rule applied to a community association, if a newly enacted (or amended) statute
impairs a vested right guaranteed by a declaration, the contracts clause
prevents it from being applied to the declaration. A statute impairs a
declaration if it creates a new obligation, imposes a new penalty, or diminishes
a vested right. 6
While the contracts clause creates a general rule against new statutes impairing
existing declarations, there are, of course, exceptions to the rule. First, if
the declaration at issue actually incorporates future legislative enactments,
new laws become part of the declaration and, therefore, do not impair it.
Again, to accomplish this, the declaration must
contain language in substantially the following form: “This declaration [or
association] shall be governed by the Condominium Act, as amended from
time-to-time.” The phrase “as amended from time-to-time” incorporates future
legislative enactments applicable to the association and is commonly referred to
as “Kaufman language.” 8
Without Kaufman language, newly enacted statutes apply only to existing
declarations and other governing documents under very limited circumstances.
Such statute must survive three separate tests to determine its
constitutionality as applied to an existing declaration: 1) the procedural vs.
substantive test; 2) the retroactive/remedial intent test; and 3) the degree of
The Procedural vs. Substantive Test
In determining whether a statute may be applied retroactively to an existing
declaration, the first determination must be whether the statute is purely
procedural in nature, or rather, it creates, alters, or impairs substantive
rights. Procedural statutes apply retroactively without offending the
Constitution and apply to existing declarations in all instances. Substantive
statutes, however, may not be constitutional and must pass the remaining
analyses in order to determine their validity. A statute is purely procedural if
it merely establishes how some right or obligation under the declaration is to
be performed. For example, if the declaration says that all election ballots
must be printed on green paper and a new statute requires that the ballots be
printed on pink paper, that statute would be purely procedural and, therefore,
permissive. If, on the other hand, the new statute requires that the ballots be
printed on pink paper and provides that unit owners who are delinquent in
payment of their assessments cannot vote on an issue before the membership, the
statute would be considered substantive, rather than purely procedural, and
would face further scrutiny.
The Retroactive Intent/Remedial Test
If the subject legislation is determined to be substantive and does not contain
language that clearly expresses the legislature’s intent that it is either 1) to
apply retroactively; or 2) to be remedial in nature and designed to clarify law
already in existence, the statute cannot be applied retroactively. In that case,
the legislation would not apply to an existing declaration that does not have
In Florida, all laws are presumed to apply prospectively, unless they are
remedial in nature, or designed to clarify law already in effect, and the
legislature clearly expresses its intention that the law is to apply
retroactively. 9 If a statute is purely remedial in nature, then it may be
applied retroactively because the law established by the statute was already in
existence and is merely being clarified.
If the statute contains language establishing that it is to apply retroactively
or that it is remedial in nature and designed to clarify existing law, the
statute may be constitutional, but only after further constitutional
considerations are resolved.10 To accomplish this, the statute must be subject
to the three-prong test established by the Florida Supreme Court in Pomponio v.
The Claridge of Pompano Condominium, Inc., 378 So. 2d 774 (Fla. 1979).
For a substantive statute that expresses the legislature’s intent that it apply
retroactively to be constitutional, the court must determine three things.
First, is the source of the state’s authority in enacting the statute (e.g.,
under the Constitution) more important than the party’s right not to have his or
her contract impaired? If that question is answered in the negative, the statute
is unconstitutional. If the question is answered in the affirmative, the statute
moves on to the second prong of the test.
The second question asks: “Is the evil the statute is designed to eradicate more
significant than the party’s right to have his or her contract left unimpaired?”
If that question is answered in the negative, the statute is unconstitutional.
If the question is answered in the affirmative, the statute moves on to the
third and last prong of the test.
The last question is: “Does the statute act as a severe impairment of the
contract at issue or does it only impair the contract minimally?” Statutes that
impair contracts minimally are constitutional under Pomponio, whereas statutes
that severely impair contracts are not. But what constitutes minimal versus
severe impairment? When addressing how much impairment will be tolerated, the
courts have often been guided by the principal, espoused in the case of Yamaha
Parts Distributors, Inc. v. Ehrman, 316 So. 2d 557 (Fla. 1975), that virtually
no degree of contract impairment is or will be tolerable. Therefore,
withstanding constitutional scrutiny under the Pomponio standard is often very
difficult, regardless of the reason the legislature enacted the statute.
Ultimately, this is why the 2007 legislation adopted as F.S. §718.404 was deemed
What This Means to Us and Our Clients
Most association officers believe that they are required to comply with whatever
statutes are enacted by the legislature, and when the law changes, the
obligations imposed on them change as well. This is sometimes, but not always,
true. If we do not properly advise our association clients concerning which
statutes apply to their associations and, more importantly, which statutes do
not, we may do them serious harm. An ill-informed association may attempt to
exercise rights it does not have, which could result in attorneys’ fee awards
being entered against the association.
Whenever a firm engages a new association client, one of the first things that
should be performed is a review of its declaration to determine whether it
contains Kaufman language. If it does, the client should be made aware of the
fact that all statutes currently on the books (and to be enacted in the future)
will apply to the association (whether the board wants them to or not).
If the client’s declaration does not contain Kaufman language, the board should
be advised of the fact that new substantive statutes do not apply to the
association and the reasons why. Then, the version of the Condominium Act or Ch.
617 or Ch. 720 that was in effect when the declaration was recorded should be
obtained and reviewed to determine and correctly explain the client’s rights and
obligations. As strange as this may sound, there’s no getting around the fact
that not every condominium in Florida is governed by the same set of statutes.
In order to determine the statutes that govern a particular condominium
association, you need to know what statutes were in effect when the declaration
of condominium was recorded, and whether the recorded declaration contains
1 Fla. Stat. §718.404 (2014).
2 See Woodside Vill. Condo. Ass’n v. Jahren, 806 So. 2d 452, 456
(Fla. 2002) (quoting Pepe v. Whispering Sands Condo. Ass’n, 351 So. 2d
755, 757 (Fla. 2d DCA 1977)).
3 See R.A.M. of South Florida, Inc. v. WCI Communities, Inc., 869
So. 2d 1210 (Fla. 2d DCA 2004) (quoting Div. of Workers’ Comp. v. Brevada,
420 So. 2d 887, 891 (Fla. 1st DCA 1982)).
4 Fla. Const. art. I, §X.
5 See Grand Condominium, 63 So. 3d 1120 (Fla. 2011); see also
Pomponio v. Claridge of Pompano Condo, Inc., 378 So. 2d 774, 776 (Fla.
1979); see also Dewberry v. Auto-Owners Ins. Co., 363 So. 2d 1077,
1080 (Fla. 1978).
6 See R.A.M. of South Florida, 869 So. 2d at 1217; see also
Metro. Dade County v. Chase Fed. Hous. Corp., 737 So. 2d 494, 499 (Fla.
7 See Kaufman v. Shere, 347 So. 2d 627 (Fla. 3d DCA 1977),
cert. den., 355 So. 2d 517 (Fla. 1978); see also
Angora Enterprises, Inc. v. Cole, 439 So. 2d 832 (Fla. 1983).
8 Kaufman, 347 So. 2d at 628.
9 See State v. Smiley, 966 So. 2d 330, 334 (Fla. 2007).
10 See Florida Ins. Guar. Ass’n, Inc. v. Devon Neighborhood Ass’n,
Inc., 67 So. 3d 187, 195 (Fla. 2011).
11 Grand Condominium, 63 So. 3d at 1122.
Eric Glazer has been practicing community association law in Florida
since 1992 and is a graduate of New York University in 1989 and the University
of Miami School of Law in 1992. He is licensed in the District of Columbia and
New York. He is the owner of Glazer and Associates, P.A., with offices in Ft.
Lauderdale and Orlando. Since 2010, Glazer has certified over 10,000 Floridians
throughout the state who are now eligible to serve as members of a Florida
community association board of directors. For the past six years, he has hosted
the Condo Craze and HOAs radio show broadcast live on the Internet. He is
certified by the Florida Supreme Court as a circuit court civil mediator and
often mediates disputes between associations and their owners.
Louis Goetz of Pembroke Pines has been a paralegal in Florida for the
past 16 years. He earned a bachelor of science degree in legal assisting from
Nova Southeastern University in 2001, and has spent a majority of his career
focused on civil litigation and appellate matters.
This column is submitted on behalf of the Real
Property, Probate and Trust Law Section, Michael J. Gelfand, chair, and Kristen
Lynch and David Brittain, editors.