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DOES THE
IMPORTANCE OF HAVING “AS AMENDED FROM TIME TO TIME” LANGUAGE
APPLY IN YOUR HOA’s GOVERNING DOCS?
By
Eric Glazer, Esq.
Published December 11, 2017
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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About
HOA & Condo Blog
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Eric Glazer graduated from
the University of Miami School of Law in 1992 after
receiving a B.A. from NYU. He has practiced community
association law for more than 2
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decades and is the owner of Glazer
and Associates, P.A. a seven attorney law firm with offices in
Fort Lauderdale and Orlando and satellite offices in Naples,
Fort Myers and Tampa.
Since 2009, Eric has been the host
of Condo Craze and HOAs, a weekly one hour radio show that airs
at noon each Sunday on 850 WFTL.
See:
www.condocrazeandhoas.com.
He is the first attorney in the
State of Florida that designed a course that certifies
condominium residents as eligible to serve on a condominium
Board of Directors and has now certified more than 10,000
Floridians all across the state. He is certified as a Circuit
Court Mediator by The Florida Supreme Court and has mediated
dozens of disputes between associations and unit owners. Eric
also devotes significant time to advancing legislation in the
best interest of Florida community association members.
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