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LANDSLIDE RULING OF FLORIDA SUPREME COURT MAKES LEGISLATIVE CHANGES MOOT! |
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An
Opinion By Jan Bergemann Published April 1, 2011
THIS IS NOT A JOKE -- EVEN IF IT'S PUBLISHED ON APRIL FOOL'S DAY.
In a landslide decision the Florida Supreme Court ruled that all legislative changes made to community association law are NULL and VOID -- if the original declaration of the community contains the sentence: "adopts the terms of the Condominium Act of the State of Florida (Florida Statute 718, et seq.) in effect as of the date of recording this Declaration,” but does not contain “as amended from time to time” language subjecting it to future statutory changes to the Condominium Act. [This ruling should be as well valid for homeowners' associations regulated by FS 720.]
The ruling in the case SUSAN COHN V. THE GRAND CONDOMINIUM ASSOCIATION makes it abundantly clear that the legislature can make all the changes it wants -- but it's all for naught if the few little words “as amended from time to time” are missing in the original declaration..
In other words: CHECK YOUR ORIGINAL DECLARATION!
If these few words are missing in the declaration, owners don't have to worry about what happens in Tallahassee. Owners living in communities where these important words are missing can ignore the mostly anti-owner bills that are discussed in Tallahassee and just laugh about the anti-owner efforts of attorneys like Gary Poliakoff and Peter Dunbar. The Florida Supreme Court just pulled quite a few of their teeth -- so to speak.
Many attorneys, managers and owners didn't pay much attention to the case that slowly made it's way to the Florida Supreme Court [CLICK HERE FOR COMPLETE INFO]
This Supreme Court ruling has definitely more impact on many communities than the Woodside Village Condominium Association, Inc. v. Jahren case in 2002. It will create a run to the original declaration filed by the developer. It's the original wording that counts -- not any legislative changes trying to meddle with the original contract.
Attorney Eric Glazer, from the law firm of Glazer & Associates, tried to fight for the private owners of the Grand Condominium, and was deeply disappointed about the stance the Supreme Court took in this case. In his first reaction after learning of the ruling Glazer said: "The Florida Supreme Court today ruled that unless your condominium documents contain a clause that adopts future statutory amendments to The Florida Condominium Act, any statute that the legislature enacts after the declaration is originally recorded, and that impairs a unit owner’s rights or the association’s rights in a manner inconsistent with the terms of the original declaration of condominium, do not apply to your condominium, because to do so would be unconstitutional. For example………..(and these are but a few) if your declaration does not contain language adopting future amendments, if your association came into existence before July, 2010, the association has no right to suspend use rights of delinquent owners, prevent delinquent owners from running for the Board, remove delinquent owners from the Board, or collect the rent from tenants of delinquent owners."
This
Supreme Court ruling surely has serious consequences!
HERE IS MY ADVICE:
This is most likely the first step in a big fight between the Florida Supreme Court and the Florida Legislature. Speaker Dean Cannon, mad about his defeat in front of the Florida Supreme in the AMENDMENT 7 case, attempts to retaliate against the Florida Supreme Court. His legislative attempts to split the Supreme Court in two, seriously cut funding for the Supreme Court, and to cut the number of staff attorneys by nearly half are obviously not much appreciated by the Supreme Court judges. The Grand Condominium ruling can be considered a warning by the members of the Supreme Court to Florida Legislators: You are nothing but a few short-termed power-hungry folks and we just showed you that we can render all your laws useless. Want to play? -- Let's play!
THIS RULING WILL CREATE EVEN MORE LEGAL CHAOS IN FLORIDA'S ASSOCIATIONS! |