Termination of a condominium in Florida is a complicated transaction with numerous legal issues at play. F.S 718.117 governs terminations of condominiums and allows termination for economic waste or impossibility or optional termination. Termination because of economic waste or impossibility requires the approval of the lesser of the lowest percentage of voting interests necessary to amend the declaration or as otherwise provided in the declaration for approval of termination. Optional termination requires that at least 80% of the unit owners approve the plan for it to become effective and 5% or more of the unit owners can reject the plan. However, not every declaration of condominium in Florida will incorporate F.S. 718.117 unless it contains Kaufman language so as to incorporate future amendments to the Florida Condominium Act (“as amended from time to time”). When a declaration does not contain Kaufman language and was recorded prior to 2007, the Association must proceed pursuant to the termination provision contained in the declaration. Many associations have previously worked around this impediment by simply amending the declaration to lower the threshold for unit owner approval of a plan of termination.
In the recent case of Avila v. Biscayne 21 Condominium, 417 So.3d 434 (Fla. 3rd DCA 2025), the termination provision in the declaration originally required the approval of all unit owners to terminate the condominium. The association sought to terminate the condominium by first amending the termination provision. The amendment lowered the approval threshold for termination to 80% of the unit owners. A minority group of unit owners did not consent to the plan of termination.
In summary, that decision turned on the following set of facts:
- On December 10, 1974, through its recorded declaration of condominium, Biscayne 21 Condominium submitted “to condominium ownership, pursuant to Chapter 711, Florida Statutes, the Condominium Act, as amended.”
- Article XIII.A. of the declaration expressly incorporated the then-existing statutory requirement of unanimity to terminate a condominium under section 711.16(1), Florida Statutes (1974): “The termination of the Condominium may be effected by the unanimous agreement of the Unit Owners . . . .”
- Article XII.A.2 of the declaration, governing amendments to the declaration, required the consent of 51% of the unit owners for most matters, but “an amendment altering . . . the voting rights of any of the Owners of the Condominium . . . shall require the approval of one hundred (100%) percent of the Owners.”
- Additionally, Article XII.C provided that: “No amendment shall change . . . the voting rights appurtenant to any Unit, unless . . . all record owners . . . shall join in the execution of such amendments.”
The Third District Court of Appeal ruled that the change to the voting threshold materially altered unit owners’ voting rights and that the original termination provision requiring unanimous approval of all unit owners “gave every unit owner an effective veto over any termination plan…” The Court reasoned that the declaration of Biscayne 21 Condominium did not contain Kaufman language and that the provisions of F.S. 718.117 (which were passed after the recording of the declaration) did not apply.
If you serve on the board of an aging condominium building that may need to consider condominium termination due to economic conditions that make redevelopment attractive, you should consult with an attorney with experience in handling these complex transactions.
