Community Update

What To Do In A Condominium Election When There Is A Tie Vote

By: Mary R. Hawk

In an election of the condominium association Board of Directors, what should the association do if two or more candidates receive the same number of votes? When a condominium association election results in a tie vote that affects which candidate will serve on the board or the length of a candidate’s term, Rule 61B-23.0021 of the Florida Administrative Code requires the association to conduct a run-off election unless the association’s bylaws provide otherwise. Alternatively, it is common for candidates who tie to simply flip a coin or draw straws to decide the matter. This practice is not specifically mentioned or validated in the law, but if all candidates are willing to live with the results, it may be a way to avoid the time and expense of a run-off election. The Association may want to get all tied candidates to agree to this approach in writing before the coin toss.

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Beyond the Board: How Committees Strengthen Community Governance

By: Jonathan R. Zim

One of the hallmarks of an effective community association is a board that knows how to engage its members. While the board of directors retains the ultimate authority and fiduciary responsibility for governing the association, committees can be invaluable in assisting the board, increasing owner participation, and bringing specialized knowledge to the decision-making process. Properly utilized, committees not only reduce the workload placed on volunteer directors but also foster transparency, encourage future leadership, and promote a greater sense of community involvement. Of course, utilizing committees does not substitute for consulting with professionals or experts, such as attorneys, accountants, engineers, contractors, etc., on sensitive and/or highly specialized matters.

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4 Common Types of Court Filings

By: Michelle H. Kaiser

In this video, Michelle Kaiser explains four common types of court filings: pleadings, motions, discovery-related filings, and notices and other procedural filings. She discusses how each serves a different purpose, from outlining each side’s claims and asking the judge to take action to gathering information and keeping everyone informed as the case progresses. Watch the full video to better understand these filings and what they mean if your association becomes involved in a lawsuit.

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Kaufman v. Shere, 347 So.2d 627 (Fla. 3d DCA 1977)

By: Yeline Goin

The applicability of the Condominium Act to a declaration of condominium is at the center of THIS CASE.

The Fifth Moorings Condominium, Inc., the condominium association for the Fifth Moorings Condominium, and certain owners in Fifth Moorings Condominium (hereinafter “Plaintiffs”), challenged the validity of an “escalation clause” that caused the rent to increase in their condominium’s lease of recreational facilities.   Unit owners became subject to their condominium’s recreational lease when they purchased  their condominium units. In May of 1974, the lessors who owned the recreational facilities (hereinafter “Defendants”) demanded the rent increase pursuant to the escalation clause in the lease. Plaintiffs argued that Florida Statutes Section 711.236, which had just become law on June 5, 1975 and which prohibited the enforcement of rent escalation clauses in condominium recreational leases, applied and made the escalation clause void and unenforceable.    

The question before the court was whether the Declaration of Condominium of Fifth Moorings was properly interpreted as incorporating prospective changes in the law, such as invalidation of escalation clauses mandated by Section 711.236, Florida Statutes.  The critical language in the Declaration provided: “…the provisions of the Condominium Act as presently existing, or as it may be amended from time to time, including the definitions therein contained, are adopted and included herein by express reference.” Plaintiffs argued that this language clearly provided for the incorporation of Section 711.236, Florida Statutes, as part of the Declaration of Condominium, while Defendants contended that the quoted provision was applicable only where the Declaration was at variance with the Condominium Act at the time that the Declaration was recorded.

The court held that there was no ambiguity in this language and found that it was the express intention of all parties concerned that the provisions of the Condominium Act were to become a part of the Declaration whenever such provisions were enacted.  As such, the court invalidated the rent escalation clause in the recreation lease.

So why does THIS CASE matter?  The “amended from time to time” language has come to be known as “Kaufman language”.  In general terms, if a Declaration of Condominium does not have “Kaufman language”, then amendments to the Condominium Act which impact substantive vested rights may not apply to condominium associations that were created prior to the effective date of the amendment (although the analysis is more complicated).   Likewise, if a Declaration of Condominium has “Kaufman language”, then future amendments to the Condominium Act would apply to the association. 

After the Kaufman case in 1975, Developers largely stopped putting “Kaufman language” in their condominium documents.  For unit owner-controlled associations, whether condominium declarations should be amended to include “Kaufman language” is a discussion to have with your association’s legal counsel, as there are pros and cons and the best strategy will depend upon many variables.