Condo Associations Have Statutory Right to Amend Declaration but can Only Unilaterally Void a Declaration Provision in Certain Circumstances
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The declaration of condominium is the instrument by which a condominium is created. Fla. Stat. § 718.103(15). Florida courts have often referred to a declaration of condominium as the condominium’s “constitution” because it “strictly governs the relationships among the condominium unit owners and the condominium association.” Woodside Vill. Condo. Ass’n, Inc. v. Jahren, 806 So.2d 452, 456 (Fla. 2002). Yet what commonly happens is that, over time, unit owners and/or the board of directors of condo associations grow to dislike certain declaration provisions. Those bound by the declaration cannot simply ignore those unwanted provisions; rather, they must take action to amend and/or otherwise change the declaration. Fortunately, Condo Associations have the statutory right to amend their declarations and may even unilaterally void declaration provisions in certain circumstances. This blog post will discuss this right in more detail.
Many condominium declarations include a paragraph providing the association an ability to amend its declaration so long as it obtains a certain percentage of affirmative votes from its members. If its declaration contains such a provision, the Florida Condominium Act allows the association to govern its own affairs and to amend its declaration accordingly. This is because associations are considered democratic sub-societies and self-governing entities with quasi-governmental characteristics. See Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180, 181 (Fla. 4th DCA 1975). But associations whose declarations are 30 years old or older often do not expressly provide the association with the right to amend. For those associations, the Florida Condominium Act has been drafted to provide all Florida condominium associations the right to amend its declaration.
If an association’s declaration fails to provide a method for amending, Section 718.110, Florida Statutes, comes to the rescue by stating that “the declaration may be amended . . . if the amendment is approved by the owners of not less than two-thirds of the units.” The statute even provides the method for amending, which is that proposed amendments shall contain the full text of the provision to be amended, with the new words inserted into the text being underlined and the words to be deleted being lined through with hyphens. Fla. Stat. § 718.110(1)(b). (Emphasis added.) If the proposed amendment is so extensive that the underlying and hyphenating of the text would make it difficult to understand then underlying and hyphenating is not required, but “a notation must be inserted immediately preceding the proposed amendment in substantially the following language: ‘Substantial rewording of declaration. See provision for present text.’” Id. An amendment to the declaration becomes effective when it is properly recorded in the public records of the county where the original declaration is recorded. Fla. Stat. § 718.110(3).
Unit owners and/or the board of directors may eventually find a declaration provision so objectionable that they wish to void it altogether. Florida’s courts have made clear that associations cannot simply ignore an undesirable declaration provision and the governing documents must be enforced in their entirety. See Woodside Vill. Condo Ass’n, Inc., 806 So.2d at 456. However, an association may unilaterally void a declaration provision if it is found that the provision is against public policy, is wholly arbitrary in its application, or it violates a fundamental constitutional right. Grove Isle Ass’n, Inc. v. Grove Isle Associates, LLLP, 2014 WL 1230326 (Fla. 3d DCA 2014). In reality, it is easier to simply push through an amendment, but if the required votes to amend cannot be obtained, those against the declaration provision have the ability to go before a court of law and have the provision declared void.
Before challenging a declaration provision in court, the challenger must understand that the appropriate test for voiding a provision is not a test of “reasonableness.” In other words, whether or not the challenged provision is “reasonable” is not determinative. See Hidden Harbour Estates, Inc. v. Basso, 393 So.2d 637, 640 (Fla. 4th DCA 1981). (“[A] use restriction in a declaration of condominium may have a certain degree of unreasonableness to it, and yet withstand attack in the courts. If it were otherwise, a unit owner could not rely on the restrictions found in the declaration of condominium, since such restrictions would be in a potential condition of continuous flux.”) For this reason, an argument that the challenged declaration provision is unreasonable will fall on deaf ears; rather, it must be demonstrated to the court that the provision is “wholly arbitrary in its application, in violation of public policy, or that it abrogates some fundamental constitutional right.” Grove Isle Ass’n, Inc. 2014 WL 1230326. Absent a court finding a certain provision void for those reasons, unit owners and/or the board of directors can only attempt to amend the declaration as provided within the association’s governing documents or by Section 718.110, Florida Statutes.