SO WHAT ARE VESTED RIGHTS

Sometimes, a unit owner will take the position that the association can’t take certain action against them because they have “vested rights.”  At least in their mind, the owner thinks that a certain right they have can’t be taken away from them, can’t be modified and can’t be messed with in any manner.  Here what the law says:

“A vested right has been defined as ‘an immediate, fixed right of present or future enjoyment’ and also as ‘an immediate right of present enjoyment, or a present, fixed right of future enjoyment.’ ” City of Sanford v. McClelland, 121 Fla. 253, 163 So. 513, 514–15 (1935) (quoting Pearsall v. Great N. Ry., 161 U.S. 646, 16 S.Ct. 705, 40 L.Ed. 838 (1896)); see also Romine v. Fla. Birth Related Neurological Injury Comp. Ass’n, 842 So.2d 148, 154 (Fla. 5th DCA 2003); In re Will of Martell, 457 So.2d 1064, 1067 (Fla. 2d DCA 1984); Div. of Workers’ Comp., Bureau of Crimes Comp. v. Brevda, 420 So.2d 887, 891 (Fla. 1st DCA 1982). ” ‘[T]o be vested, a right must be more than a mere expectation based on an anticipation of the continuance of an existing law; it must have become a title, legal or equitable, to the present or future enforcement of a demand [ ]….’ ” Brevda, 420 So.2d at 891 (quoting Aetna Ins. Co. v. Richardelle, 528 S.W.2d 280, 284 (Tex.Civ.App.1975)).  Vested rights are distinguished not only from expectant rights but also from contingent rights.

“[R]ights are vested, in contradistinction to being expectant or contingent. They are vested when the right to enjoyment, present or prospective, has become the property of some particular person or persons, as a present interest. They are expectant when they depend upon the continued existence of the present condition of things until the happening of some future event. They are contingent when they are only to come into existence on an event or condition which may not happen or be performed until some other event may prevent their vesting.”

Other than the right to continue to own the unit as long as assessments are paid, it is difficult to think of “vested” rights that owners can claim in a condo or HOA setting, especially if there is Kaufman language or “as amended from time to time” language in the declaration.  The declaration can be amended for almost any reason by the unit owners.  Even the right to rent can be taken away.  The right to vote can be taken away if delinquent.  The right to run for the Board can be taken away. In fact, it is difficult to think of any right that is “fixed” and can’t be modified or even completely removed when you live in a condo or HOA.

Anyone disagree?

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