A new Florida Supreme Court ruling in the case of “Cohn v. Grand,” may significantly affect Golden Lakes Village.
For many years Golden Lakes Village and other Florida condominium and homeowners associations have planned their affairs, rules and regulations in the belief that certain statutes must be complied with in certain ways, namely statutes 718 and 720. A new ruling from the Supreme Court may greatly change whether 718 and 720 do apply to Golden Lakes Village in important ways. Since this is a new case, there is a lot of speculation and difference of opinion among various law firms as to whether this will lead to large or small problems, such as the right of an association to limit access to facilities by owners in arrears.
Below are some links to further information about this case, and also a few of the opinions from various attorneys about how the case might affect associations.
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Full Text Of Supreme Court Case:
View the full text AND FINAL DECISION of the court case by CLICKING HERE.
Sun Sentinel Blog Articles:
Attorneys and others have posted comments interpreting how this case might affect associations which you can view by CLICKING HERE.
One writer on this website comments as follows:
I listened to Eric Glazer’s program Sunday to learn more about the latest headache for associations. E-mails had been alerting us to the Florida Supreme Court’s decision about new association laws as they apply to existing documents. Great, just what we need…another problem.
It turns out the Court ruled that any laws passed after the documents were handed over from the developer don’t apply unless the docs state, along with the governing Florida statutes (Ch. 718 or 720,) “as amended from time to time.” The decision said it’s a contract between developers and unit owners. The Legislature cannot alter a contract; only the parties to the contract can do that. It applies to HOAs as well
The docs must stay as they were originally if the enabling wording isn’t there. Some docs actually cite F.S. Ch. 711 (that goes waaaay back.) That means all the laws passed over the years are not enforceable if the docs don’t allow for anything to be added. This is actually going to be a nightmare for some associations because it will take more than just a majority of the owners to approve the appropriate language.
The correct wording needs to be put into all docs that don’t have them. Associations need to contact their attorneys right away. Ten different associations in a development could be governed by different statutes if they all don’t have the adoption clause. Think about a development that has common recreations areas shared by those ten associations. What could possibly go wrong?
A question was asked about whether the Board Certification course could be required. If docs don’t contain that language, the new law won’t apply. And some of what the courses teach won’t apply to all the board members who do come even if their docs don’t have the right wording. So some of it is applicable, some not.
Look at your docs and get the language in them if it’s not there. Murphy’s Law is one that definitely applies across the board in Florida’s association world.
Attorney Daniel S. Rosenbaum presented the prevailing arguments to the Supreme Court in this case, and summarizes it as follows:
“The Supreme Court of Florida unanimously held that because the Governing Documents do not incorporate subsequent amendments to the Condominium Act, and because subsequent legislation which diminishes the value of a contract is repugnant to the Florida Constitution, laws impairing the obligations of contract are constitutionally prohibited and must be struck down in accordance with the case of Pomponio v. Claridge at Pompano Condo., Inc., a 1979 Supreme Court of Florida decision.”
Daniel S. Rosenbaum is the attorney whose arguments prevailed in this court case, and he is the Managing Shareholder in the West Palm Beach law firm of Rosenbaum Mollengarden Janssen & Siracusa, PLLC (“RMJS”).
Hollywood attorney Eric M. Glazer, Esquire, who was also involved in the case, summarized his view of the case as follows:
” . . . . Here is in my opinion….on what is the bottom line on the Cohn decision…….and why it is a problem for condos and HOAs. If a new law effects the rights of an owner as originally provided for in the governing documents, that new law does not apply in associations that don’t have the future amendments language. For example…….if your governing docs don’t contain the future amendments language, the association can forget about suspending delinquent owners from running for the board, suspending their voting rights, suspending their rights to use the common areas, cuting off their cable TV (being contemplated by legislature now), taking rent from the tenants of delinquent owners, etc…. It can’t be done because these new laws obviously impair the rights of the owner in a manner that was not originally provided for in the governing documents. Nobody is suggesting that Florida Statute 718 or 720 no longer applies to their association. They do. However, all of these new “weapons” that were provided to associations are unavailable to associations who don’t have the future amendment language in their governing docs………..and the Board members of these communities are now somewhat shocked to learn for the first time that they are not allowed to use these weapons. While I hear and read that the Cohn case is nothing new……..the truth is……..we have never read…..until now……that these wonderful weapons simply don’t apply in communities without the future amendments clause in their documents. Condo and HOA Boards have always been sold claims about how each of these new weapons will better their community and crack down on dead beats. Show me one article…….until now……….where these same Boards were advised that these new laws may not apply to their community if they don’t have the future amendment clause in their docs. ”