DOES THE IMPORTANCE OF HAVING “AS AMENDED FROM TIME TO TIME” LANGUAGE APPLY IN YOUR HOA’s GOVERNING DOCS?

 

To be frank, some blogs are more important than others.  If you live in an HOA this is one of the important ones.  There has been lots of talk over the last few years about the importance of knowing whether or not you have “Kaufman” language in your governing documents.  This language simply automatically incorporates changes to the Florida Statutes as they may occur from time to time into your governing documents, even if those new laws change substantive rights the parties have under the governing documents.

To date, there have only been cases decided by the courts involving condominium associations, not HOAs.  New Florida condominium laws that impair rights under the governing documents have been held not to apply in condominiums where the governing documents do not contain the “as amended from time to time” language, on grounds that the new law would unconstitutionally impair the contract. So, what about HOAs?

For the record, I certainly opine that the “as amended from time to time” language is also necessary in your HOA’s governing documents if any new HOA law that impairs anyone’s rights under the declaration is to be valid in that association.  For example, if your declaration of covenants pre-dates the enactment of all of the laws that prevents delinquent owners from running for the board, allows the association to impose fines, allows the board to suspend voting rights, allows the board to prevent use of the common areas, and does not contain a clause that automatically adopts future amendment to Florida Statute 720, your association cannot utilize these law new laws as they provide for new penalties that are not contained in the original declaration or contract between the association and its members.  And here’s the scary part……….I HAVE NEVER SEEN ONE HOA DECLARATION OF COVENANTS INCLUDE THE NECESSARY “AS AMENDED FROM TIME TO TIME” LANGUAGE.

So, what do you do now?  If you want to ensure that your HOA is subject to all of the provisions of the current Florida HOA Act, and all future amendments to the Act, you need to amend your governing documents with a vote of the owners.  Any questions, let me know.

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