The introduction of new reserve funding requirements for condominiums in Florida has sparked significant debate, particularly concerning whether these requirements can apply retroactively to condominiums with existing conflicting language in their governing documents. This issue hinges on several legal interpretations and past arbitration rulings.
Kaufman Language
The "Kaufman" language refers to a provision in a condominium's declaration stating that the condominium is subject to the Florida Condominium Act "as amended from time to time." This language allows changes in the law to apply retroactively to the condominium. However, many older condominiums lack this language, leading to disputes about the applicability of new laws.
The Role of §718.112(2), Florida Statutes
Section 718.112(2), Florida Statutes, mandates specific provisions for condominium bylaws, including reserve funding requirements. If the bylaws do not include these provisions, they are deemed to include them by default. This has led some to argue that associations cannot circumvent these requirements by amending their governing documents. A key point of contention is whether these statutory requirements are procedural or substantive, which affects their retroactive applicability.
Key Cases and Rulings
The case of Paradise Plaza Condominium established that when a bylaw conflicts with a statutory provision that grants power to unit owners, the statute prevails. This suggests that statutory requirements for reserve funding may override conflicting bylaw provisions.
Furthermore, the arbitrator in the Maureen Short v. Windhover Association, Inc. case concluded that voting rights are constitutionally protected substantive rights. This decision implies that new substantive statutory requirements, like reserve funding, cannot be applied retroactively without explicit legislative intent.
Potential Consequences for Non-Compliance
Even if a condominium successfully argues against the retroactive application of new reserve funding laws, there may still be exposure to claims of breaching fiduciary duty. Florida statutes impose fiduciary duties on board members to comply with state standards, which could lead to legal challenges if those standards are not met.
The question of whether new reserve funding requirements can apply retroactively to condominiums without Kaufman language is complex and involves balancing statutory mandates with constitutional protections. While recent arbitration decisions provide some guidance, ongoing legal challenges and potential legislative revisions may further shape the landscape. Condominium associations are advised to seek legal counsel to navigate these changes and ensure compliance with evolving laws.
