the legislative session in 2004 the Florida legislature enacted SB 1184,
an association bill that was actually a collection of many other bills.
Among the provisions included in this bill was an important paragraph
that partially stopped condominium boards from creating rental
restrictions, using the Supreme Court decision of Woodside Village Condominium
Association, Inc. v. Jahren to justify taking away owners'
vested rights. This one sentence created within the Condo Act -- FS 718.110(13)
sure that existing rental rights are grandfathered in.
FS 718.110(13) Any amendment restricting unit owners'
rights relating to the rental of units applies only to unit owners who
consent to the amendment and unit owners who purchase their units after
the effective date of that amendment.
Woodside Village Condominium
Association, Inc. v. Jahren
v. Island Club Condominium, Inc.,
Case No. 2004-04-4285, Partial Summary Final Order (January 12, 2005)
the association was unable to amend the declaration to impose
additional leasing restrictions, but instead amended the bylaws to
limit the right to lease set forth in the declaration, the bylaw
amendment constituted an illegal amendment to the declaration and was
invalid. Woodside holds that purchasers are only on notice of lawful
amendments to the documents, and does not act to validate
amendments to the documents that are otherwise invalid.
et al. v. Ocean Harbour of Islamorada Condominium Association, Inc.
Case No. 2004-02-8316, Partial Summary Final Order (February 1, 2005)
the declaration is silent on the manner of making material alterations
to the common elements, and where the bylaws, although incorporated
into the declaration, provide that no vote of the owners is required
for material alterations undertaken by the association costing less
than a specified sum, the bylaw provision did not override the
statutory requirement that where the declaration is silent, the
approval of 75% of the total voting interests shall be required.
Blue Tree Orlando v. Blue Tree Resort at Lake Buena Vista Condo Assoc.,
Arb. Case No. 2004-03-9446, Summary Final Order (January 7, 2005)
- Where the association constructed a
check-in building on the property of the timeshare condominium resort,
the addition of the office constituted a material alteration to the
common elements within the meaning of Section 718.113(2), Florida
- The manner of accomplishing material
alterations to the common elements does not amount to a vested
substantive right under either the appropriate case law or the
statute. Rather, the manner of creating material alterations or
substantial additions is procedural or remedial in nature, as
clarified by legislation overruling Wellington Property Management
v. Parc Corniche, 755 So. 2d 824 (Fla. 5th DCA 2000), which
decision was inconsistent in spirit with Woodside Village
Association v. Jahren, 806 So. 2d 452 (Fla. 2002), teaching that
rights not deemed fundamental by the statute or the documents could be
changed by amendment to the declaration. Woodside did not
recognize a vested right to the procedural manner in which changes
could be accomplished under section 718.113(2), Florida Statutes.
- The 1992 amendment to section
718.113(2), Florida Statutes, providing that where the declaration is
silent on the manner of making material alterations to the common
elements, a vote of 75% of the total voting interests is required,
applies to declarations recorded prior to the statutory
amendment. There is no vested right to the procedure whereby
material alterations to the common elements may be accomplished.
- Section 721.13(8) of the Timeshare Act,
effective in June 2000, providing that the board of timeshare
condominium association may make material alterations to the common
elements without complying with section 718.113(2), Florida Statutes,
applies to pre-existing declarations of condominiums and does not, in
operation, impair vested rights.
2000 amended to section 721.13(8) of the Timeshare Act which purports
to exempt timeshare associations from section 718.110(4), Florida
Statutes, may only be retroactively exempt to the extent that it does
not impair any rights created by section 718.110(4), Florida Statutes.
v. Maya Marca Condo. Apts., Inc., Case
/ Final Order Dismissing Amended Petition
/ September 5, 2005)
an owner filed a petition seeking to challenge an unwritten rule of
the board prohibiting leasing of a unit within the first 3 years of
ownership of a unit, the petition was dismissed where the owner had
failed to allege that the association had sought to enforce the rule
against him. Taking the allegations of the petition to be true, the
association had threatened to enforce the rule against a different
the first petition challenging a rental rule was dismissed without
prejudice because it was not shown that the association had sought to
enforce the rule against the petitioning unit owner, it was
inappropriate for the petitioner in the amended petition to add an
additional unit owner as party petitioner. No allegations regarding
the unrelated petitioners can confer standing on the original
petitioner to challenge the unwritten rule. The original petitioner
must sink or swim on his own merits.
v. Cypress Club Condo., Inc., Case No. 2005-03-7541
/ Summary Final Order / November 1, 2005)
Where the declaration was amended to provide that
no unit owner may lease his unit within 2 years from his initial
purchase of the unit, but did not prohibit or otherwise address the
sale of a unit under a current lease, the unit owner who leased his
unit prior to the effective date of the amendment and who attempted to
gain association approval of his purchaser was entitled to such
approval notwithstanding the associationís argument that approval of
the transfer of the unit while under lease would result in a per se
violation of the amendment to the declaration prohibiting unit owners
to lease within the first two years of their purchase. The objective
of the amendment would not be violated where the new purchaserís two
year moratorium on leasing commenced upon expiration of the existing