THE AS AMENDED FROM TIME TO TIME LANGUAGE REVISITED

Last week we discussed how Board members can be removed from the Board for failing to pay their assessments.  We also know that unit owners can be prevented from voting for failing to pay their assessments.  They can also be banned from using portions of the common areas and can be prevented from running for the Board of Directors.

All of these laws were basically passed by The Florida Legislature in response to the foreclosure crisis that plagued and continues to plague the state.  Instead of The Florida Legislature truly helping members in community associations by passing laws which force the banks to pay associations more money when they foreclose on a property and take over ownership, they chickened-out from that fight and made laws that force Board members to fight with their neighbors.  These laws never did much good for communities because nobody that owes an association $10,000.00 in assessments cares too much about running for the Board or using the exercise room with their neighbors.  Instead of paying $10,000.00 to get their privileges reinstated, they can join L.A. Fitness or Ballys for $25.00 a month.

Here’s another problem with these new laws.  Unless you have what is commonly referred to as “Kaufman” language or “as amended from time to time” language in your governing documents, these laws don’t apply to you anyway.  Let me explain.

Many of your governing documents were drafted prior to any of these laws coming into existence.  Moreover, many of your governing documents only adopt the Florida condominium or HOA statutes as they existed when your community was first formed.  They fail to also include a provision which adopts the association laws as they will be amended from time to time each year by The Florida Legislature.  Therefore, if your governing documents do not contain Kaufman language, as to laws that seek to change  rights under the governing documents to vote, use the common areas, or run or remain on the board – these laws would not apply in your association because by applying them it would violate the contracts clause of both the Florida and United States Constitutions which state that no law can be made which impairs a contract.

Procedural laws however will apply in your association despite your documents not having Kaufman or “as amended from time to time” language.  Examples of procedural laws would be the process for how an election is to be run, when and what type of year end financial reports need to be prepared, what type of notices are to be given for meetings.  These laws do not take away any rights from anyone and merely describe the procedures that an association must follow.

 

So what happens if you now review your governing documents and there is no language that adopts future amendments to the Florida community association statutes?  You can now amend your declaration of condominium, (typically with a two-thirds or three-quarter vote of the owners) to adopt the statute as it presently exists, and all future amendments to the statute going forward.  That way, each year, you know for sure and for certain that the new laws apply in your community.

This is often times a confusing topic and I certainly tried to present it in the least confusing way.  Feel free to write your questions below and I’ll do my best to answer them.

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