Florida/Georgia Personal Injury & Workers Compensation

...as it should have read all along. Porter, 74 So.2d at 85. By contrast, an amendment that changes the provisions of a document prospectively does not provide a determination that, as originally written, it contained an erroneously drafted provision. Section 718.110(1)(a), Florida Statutes (Supp....

...materially alter or modify the appurtenances to [any] unit, or change the proportion or percentage by which the owner of the parcel shares the common expenses and owns the common surplus unless the record owner of the unit ... join[s] in the execution of the amendment. § 718.110(4), Fla....

...twenty-percent share. The object of the amendment would be to reduce those shares to twelve and one-half percent. Thus, the declaration could not be amended under subsection (4) without Biancardi's consent. Although subsections (5), (9), and (10) of section 718.110, Florida Statutes (Supp....

...ase). [2] The statute makes no reference to any procedure to be followed in Tallahassee. Amendments to declarations, like original filings thereof, are made by recording in the public records of the county where the land is located. §§ 718.104(2), 718.110(3), Fla....

...§ 122(2012). The powers of a condominium association do not appear to include the power to unilaterally void all or any portion of a declaration of condominium. 8 Rather, a declaration of condominium can generally be amended as provided in the declaration. § 718.110(l)(a), Fla. Stat. (2012). If the declaration fails to provide a method of amendment, it may be amended as to all matters, except those described in subsections (4) or (8) of section 718.110, if the amendment is approved by the owners of not less than two-thirds of the units. Id. Thus, “section 718.110 ......

...4th DCA 1995); Shuster, 570 So.2d at 1368; Krathen, 471 So.2d at 587. Although the Association admits to attempting to amend the documents governing Berkley South, its attempt was unsuccessful and ineffective because all record unit owners failed to approve the amendment as required by section 718.110(4), Florida Statutes (1995). Because any effort to amend the documents was ineffective under section 718.110(4), the trial court's finding that the hallway was effectively eliminated as a private unit and converted to a common element cannot be recognized....

...pplication, in violation of public policy, or that they abrogate some fundamental constitutional right. See White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla.1979). Id. at 639-40 (emphasis added). AMENDMENTS TO DECLARATION Significantly, section 718.110 also provides broad authority for amending a declaration of condominium. In particular, section 718.110(1)(a) provides: If the declaration fails to provide a method of amendment, the declaration may be amended as to all matters except those listed in subsection (4) or subsection (8) if the amendment is approved by the owners of not less than two-thirds of the units. Except as to those matters described in subsection (4) or subsection (8), no declaration recorded after April 1, 1992, shall require that amendments be approved by more than four-fifths of the voting interests. § 718.110(1)(a), Fla....

...Based upon this broad statutory authority and the provisions for amendment set out in the declaration of condominium, courts have recognized the authority of condominium unit owners to amend the declaration on a wide variety of issues, including restrictions on leasing. Of course, section 718.110(1)(a) itself contains some restrictions on the amendment process....

...age by which the unit owner shares the common expenses and owns the common surplus of the condominium, or permit timeshare estates to be created in any unit of the condominium, unless otherwise provided in the declaration as originally recorded. See § 718.110(4), (8), Fla....

...titutional right. See id. at 98-99. We agree with this reasoning. To hold otherwise, we would have to conclude that the right to amend a declaration of condominium is substantially limited, well beyond those limitations imposed by the Legislature in section 718.110(4) and (8). We would also be faced with the difficult task of deciding what subjects could be addressed by the amendment process, a task much better suited for the Legislature, as can be seen by its imposition of restrictions in section 718.110....

...legislative scheme that created and regulates condominiums and condominium living. As noted above, the Legislature has demonstrated its awareness of the need for limitations on the authority of unit owners to amend a declaration by its enactment of section 718.110(1)(a), (4), and (8)....

...tion of an amendment imposing a lease restriction, nor does any provision require the consent of all unit owners to adopt such an amendment. To the contrary, the Condominium Act provides broad authority for amending a declaration of condominium. See § 718.110(1)(a), Fla....

...[5] *677 The district court of appeal found that the association had the power to purchase the land, but had failed to comply with those provisions requiring unanimity within the association to materially alter or modify the appurtenances to the unit pursuant to section 718.110(4), Florida Statutes (Supp....

...he property without the consent of all unit owners and, therefore, the assessments were illegal and the claims invalid. Final judgment was entered canceling the claims of lien and assessing special damages against the Association. We affirm. We find Section 718.110(4), Florida Statutes (Supp. 1978) [1] and Article VII of the Declaration of Condominium controlling. Section 718.110(4) provides: Unless otherwise provided in the declaration as originally recorded, no amendment may change the configuration or size of any condominium unit in any material fashion, materially alter or modify the appurtenances to the u...

...The Association correctly argues that provisions of the Condominium Act as amended from time to time automatically became part of the documents of Tower House Condominium by the language of Article I of the Declaration. See note 1, supra. This includes Section 718.110(4), Florida Statutes (Supp. 1978). If the terms of Section 718.110(4) are inconsistent with the Declaration or By-Laws, the statutory provision prevails....

...See also Blacks' Law Dictionary (5th ed. 1979) ("A thing is `appurtenant' to something else when it ... is necessarily connected with the use and enjoyment of the latter ... [or] used with the land for its benefit"). Article VII of the Declaration of Condominium is consistent with § 718.110(4), supra, in providing that any change in the condominium parcel, i.e., the unit and the interest in the common elements, [8] requires the vote of all unit owners. Article VII(3)(D) of the By-Laws, as applied herein by the Association, is inconsistent with the Declaration and § 718.110(4), supra, in that it permits material alterations or modification by less than a vote of all unit owners and is, therefore, invalid....

...ies the owner's interest in the common elements which are appurtenant to the unit and, therefore, changes the condominium parcel. Such a change requires the vote of all record owners of the condominium units. Article VII, Declaration of Condominium, § 718.110(4), Fla....

...Therefore, completion of construction is not essential to the creation of a valid condominium on real property. Likewise, "[a]n amendment of a declaration is effective when properly recorded in the public records of the county where the declaration is recorded." § 718.110(3), Fla....

...rida Land Sales, Condominiums, and Mobile Homes). We also read the amendment as a clarification consistent with the statutes and not as a change in its intent. Our construction brings section 718.403 into express harmony with sections 718.104(2) and 718.110(3)....

...ment of the maintenance agreement were void. The trial court held that, in order to purchase the property and to extinguish the maintenance agreement, the unanimous consent of all unit owners was required by the original condominium documents and by section 718.110(4), Florida Statutes (1979)....

...aintenance agreement together with the purchase of the real estate described in the lease would materially alter or modify the existing appurtenances to their condominium units. We, accordingly, hold that Beau Monde's attempt to do so is governed by section 718.110(4) and by the holding of the Third District Court of Appeal in the case of Tower House Condominium, Inc. v. Millman, 410 So.2d 926 (Fla. 3d DCA 1981). Section 718.110(4) provides as follows: (4) Unless otherwise provided in the declaration as originally recorded, no amendment may change the configuration or size of any condominium unit in any material fashion, materially alter or modify the appurte...

...re material alterations or modifications of the appurtenances to the appellees' unit, Beau Monde's attempt to take said action is void because all record owners did not join in the execution of the amendments to the original condominium instruments. § 718.110(4); Tower House; see also, Thiess v....

...under section 718.111(12), Florida Statutes (1979), as advocated by the appellants. Furthermore, since the action would alter or modify existing appurtenances to the appellees' individual units without the consent of all record owners as required by section 718.110(4), the attempted actions are ultra vires and therefore void....

...lusive easements to allow patio extensions as an adjunct to particular units, over and upon the common areas. We conclude that this was improper. As we have already said, this is not a condominium development, yet a close parallel can be found under section 718.110(4), Florida Statutes (1987), which provides as follows: Unless otherwise provided in the declaration as originally recorded, no amendment may change the configuration or size of any condominium unit in any material fashion, materially...

...As a result, the leaking roofs collapsed and the two buildings were condemned by the City of Lauderdale Lakes resulting in the constructive eviction of appellants. The claims against the owners/lessors were subsequently dismissed and there remained three claims against appellee: (I) breach of statutory duty under section 718.110, Florida Statutes (2000), for appellee's failure to maintain the common elements of the condemned condominium buildings; (IV) negligence, gross negligence and/or negligence per se for appellee's failure to manage, maintain and repair...

...ight in the future want to exercise claimed prerogatives under the founding document, would prohibit any amendment ever unless 100% of the owners acquiesced or consented. That simply is not the law which even contemplates amendment by state statute. Section 718.110, Florida Statutes (1983)....

...However, this latter portion of the proviso, separated by a semicolon, in our view is intended only to protect the apartment's physical character, its proportionate share of the common elements and lien holders. In this regard, though we were not cited to it, the proviso obviously tracks Section 718.110(4), Florida Statutes (1983)....

...The action sought a determination of whether the recreation association had the authority to acquire land, build a swimming pool, and assess the members of the recreation association for the cost, without unanimous approval of the members as required by section 718.110(4), Florida Statutes (1985)....

...The trial court found the recreation association to be an entity separate from the several Jungle Den Villas Condominium Associations, and ruled that the recreation association had the right to acquire property, improve it, and assess accordingly, without the unanimous approval of its members. We reverse. Under section 718.110(4), Florida Statutes (1985), a material alteration or modification of the appurtenances to a condominium cannot be made absent unanimous approval of all unit owners....

...substance and equity, an "appurtenance to the condominium" and the same as a "common element" of each individual condominium association as those words are defined in section 718.103(6), Florida Statutes. The legislative intent of the requirement in section 718.110(4) of unanimous approval of any material alteration or modification of the appurtenances to a condominium unit should not be vulnerable to circumvention by the simple act of setting up an ostensibly independent corporation empowered t...

...which condominium associations are subject. The recreation association's right to build a swimming pool on the subject property and assess unit owners for the cost succeeds or *442 fails based upon a unanimous vote of the unit owners as required by section 718.110(4), Florida Statutes (1985), not upon a bare majority vote....

...on surplus, nor the voting rights appurtenant to any Unit unless the record owner(s) and all record owners of mortgages or other voluntarily placed liens thereon shall join in the execution of the amendment. Article VIII is consistent with statutory section 718.110(4) which provides: Unless otherwise provided in the declaration as originally recorded, no amendment may change the configuration or size of any condominium unit in any material fashion, materially alter or modify the appurtenances to...

...concerned agreed. While unit owners consented in the declaration to the incorporation of amendments to the condominium act, they did not consent to section 718.115(2) as to the apportionment of common expenses. The appellees additionally argue that section 718.110(4) applies only "[u]nless otherwise provided in the declaration" and that article I(A) otherwise so provides....

...The Court finds that this statute does not address whether the unanimous vote of the owners is required before a condominium association may acquire title to property. Accordingly, the Court finds that these two cases were not overruled by the passage of this statute. The above two cases, and Florida Statute Section 718.110(4) (1984 Supp.) govern the case at bar. 10. The Court finds the purchase of the property by Defendant, OCEAN TRAIL, materially altered and modified the appurtenances to the Plaintiffs' units. Thus, under the original condominium documents and Florida Statute Section 718.110(4) (1984 Supp.), the unanimous consent of the unit owners was required before Defendant OCEAN TRAIL could purchase the property. Such unanimous consent was not obtained. Therefore, Defendant OCEAN TRAIL had no authority to enter into the above-described agreement. See Fla. Stat. Sec. 718.110(4); Beau Monde, Inc....

...The Suntide Condominium Association, Inc. (Association) appeals the declaratory statement rendered by the Division of Florida Land Sales, Condominiums, and Mobile Homes (Division) which found that the reformation action initiated by the Association in circuit court was not authorized by section 718.110, Florida Statutes (1985), and therefore no Association monies could be utilized in the maintenance of the action....

...n action. In the meantime, the dissenting unit owners filed a motion to dismiss the reformation action and a motion to strike the condominium association as a proper party to the reformation action. The dissenting unit owners argued that pursuant to section 718.110(4) and section 718.115(2) no change to the percentage or ownership of the common elements can be accomplished without the consent of all unit owners. The Association argued that it could bring a reformation action under section 718.110(10). The circuit court denied the motions filed by the dissenting unit owners finding, among other things, that it had common law jurisdiction to order reformation and statutory jurisdiction pursuant to section 718.110(10)....

...h Chapter 718, to initiate the reformation action and expend Association funds in the prosecution of the action was not before the circuit judge for determination. Further, according to the Division, neither was the issue of whether, by operation of section 718.110, the Association *1345 has the authority to maintain an action to reform the declaration of condominium in the manner desired. In the declaratory statement, the Division found that the Association was required to use the amendment procedure in section 718.110(4), because it was seeking to change the percentage by which the owners shared in the common expenses, and that it could not bring a reformation action in the circuit court based on section 718.110(10)....

...ciation has the authority to request such relief. We find these questions indistinguishable from those already presented to the court for decision. The circuit court found it had common law and statutory jurisdiction to order reformation pursuant to section 718.110(10). In its declaratory statement, the Division found that the Association could not utilize section 718.110(10) but was required to follow the procedure outlined in section 718.110(4)....

...s inconsistent with the bylaws and the condominium law in effect at the time of purchase. The exercise of the general power to amend the Declaration of Condominium which occurred in this case is contrary to the requirements of section 718.113(2) and section 718.110(4), Florida Statutes (1989), the law in effect when the condominium documents were recorded. Section 718.113(2) provided: There shall be no material alteration or substantial additions to the common elements except in a manner provided in the declaration. [2] Section 718.110(4) provided: Unless otherwise provided in the declaration as originally recorded, no amendment may ......

...er the declaration is recorded satisfies the legislative condition precedent that any amendment authorizing the alteration of common elements must appear in the declaration as originally recorded. This argument is contrary to sections 718.113(2) and 718.110(4), Florida Statutes (1989)....

...ost and enjoyment associated with owning a condominium. Hence, when the legislature provided that "[u]nless otherwise provided in the declaration as originally recorded, no amendment may ... materially alter or modify the appurtenances to the unit" (section 718.110(4)) and "[e]xcept as otherwise provided in this section, there shall be no material alteration *827 or substantial additions to the common elements ......

...By specifically providing in the by-laws under what circumstances the common elements may be altered, the declaration, by incorporating the by-laws, has limited the general right to amend the declaration so that such amendment may not affect existing rights. Appellee relies on the language added to section 718.110(4) the year following the recording of the declaration in this case....

...it owners unless it was provided otherwise in the declaration as originally recorded. This provision was interpreted by this court in Downey v. Jungle Den Villas Recreation Association, Inc., 525 So.2d 438, 440 (Fla. 5th DCA 1988), as follows: Under section 718.110(4), Florida Statutes (1985), a material alteration or modification of the appurtenances to a condominium cannot be made absent unanimous approval of all unit owners....

...want or be able to afford. Therefore, for a "condominium association" to acquire property, construct a pool on it, and assess each member for the cost, unanimous approval of each unit owner would be required. Some years after this interpretation of section 718.110(4) by this and other courts, the legislature amended the language of the act to provide that the association's acquisition of property and its alterations or additions to the common elements, if accomplished in accordance with certain...

...Plaintiffs also argue that they could not legally close on their units because Mona Lisa failed to properly update the relevant declaration of condominium after it completed construction as required by § 718.104(4)(e) of the Florida Statutes. The Court finds that the plaintiffs' claim on this point is untimely pursuant to § 718.110(10) and is moot, given the undisputed fact numerous other non-plaintiff purchasers have closed on their units....

...Paragraph 21B of Ciega Verde's Declaration of Condominium provides that "[n]o amendment may ... materially alter or *529 modify the appurtenances to the unit ... unless all record owners of units and all record holders of first mortgages approve the amendment." See § 718.110(4), Fla....

...adverse changes to the Prospectus by the Amendment. Florida law allows a buyer to void a condominium purchase agreement if the developer makes a material and adverse change to the offering documents, Fla. Stat. 718.503(1)(a). In addition, Fla. Stat. 718.110(4) states: no amendment may change the configuration or size of any unit in any material fashion, materially alter or modify the appurtenances to the unit, or change the proportion or percentage by which the unit owner shares the common expen...

...s included in the definition of “assessments” in the Declaration. The focus on appeal has become the application and effect of certain statutory provisions apparently not brought to the trial court’s attention, including section 718.115(2) and section 718.110(11), Florida Statutes (2004)....

duties of the clerks of the circuit courts. 10 Section 718.110, F.S., allows amendment of the declaration

...4th DCA 1995); Shuster, 570 So.2d at 1368 ; Krathen, 471 So.2d at 587 . Although the Association admits to attempting to amend the documents governing Berkley South, its attempt was unsuccessful and ineffective because all record unit owners failed to approve the amendment as required by section 718.110(4), Florida Statutes (1995). Because any effort to amend the documents was ineffective under section 718.110(4), the trial court’s finding that the hallway was effectively eliminated as a private unit and converted to a common element cannot be recognized....

...invalid and that Appellants remained liable for certain assessments after that purported amendment. The trial court based its determination on the finding that the amendment procedures used by Appellants violated the terms of the declaration and section 718.110(4), Florida Statutes....

...Based on the undisputed material facts, the court denied the defendants’ motion and deemed the May 2010 amendments to the declaration invalid. The court found that the Club memberships were “appurtenances to the condominium units” and thus subject to section 718.110(4), Florida Statutes....

...judgment deeming the amendments to the declaration invalid. The trial court’s summary judgment that the amendments to the declaration 7 made in 2010 were invalid as a matter of law, pursuant to section 718.110(4), Florida Statutes, was a misapplication of law requiring reversal....

...2d DCA 1975) (defining “an appurtenance”). 8 are parties to this litigation. Because the Club memberships in this case are not “appurtenances to the units,” as that term is legally defined, the unanimous approval of amendments modifying such appurtenances, as provided in section 718.110(4), Florida Statutes, does not apply. Even if the amendments at issue were modifications or alterations of appurtenances to the units, section 718.110(4), Florida Statutes, would not invalidate the amendment action taken by the Master Association on May 4, 2010. The statutory requirement that all unit owners “approve the amendment” is inapplicable because section 718.110(4) is qualified by its own introductory phrase: “Unless otherwise provided in the declaration as originally recorded.” The declaration as originally recorded did otherwise provide for a detailed representative voting scheme for amendment of the declaration....

...did not comprise two-thirds of the voting power of the members. The trial court’s denial of the defendants’ motion for partial summary judgment as a matter of law because the Master Association’s voting procedure on the amendments did not comply with section 718.110(4), Florida Statutes, was a misapplication of that statute. The trial court also erred by denying the associations’ motion for partial summary judgment on the validity of the amendments based on its finding of a genuine is...

...For its part, the Association did not oppose the 2 relief requested. DEJ, on the other hand, filed an answer generally denying Terrace’s entitlement to relief and asserting several affirmative defenses, including defenses based on the three-year statute of repose set forth in section 718.110(10) of Florida’s Condominium Act and the five-year statute of limitations applicable to legal or equitable actions based on a contract, as set forth in section 95.11(2)(b), Florida Statutes (2005)....

...Ultimately, Terrace and DEJ filed cross-motions for summary judgment. Considering the parties’ competing motions, the trial court began by rejecting DEJ’s statute of repose and statute of limitations arguments. First, the trial court found section 718.110(10) inapplicable to Terrace’s claims....

...(alteration in original) (quoting Kush v. Lloyd, 616 So. 2d 415, 421-22 (Fla. 1992)). Thus, a statute of repose may bar a cause of action which did not accrue until after the repose period expired. Id. DEJ’s statute of repose defense was based on section 718.110(10), Florida Statutes (2005)....

...declaration and other documents shall be effective under this chapter to create a condominium as of the date the declaration was recorded, whether or not the documents substantially comply with the mandatory requirements of law. § 718.110(10), Fla....

...Id. Specifically, the purchasers alleged “the declaration was defective because 4 there were no common elements.” Id. at 843 n.1. On these facts, the Eleventh Circuit affirmed that the purchasers’ suit was barred by section 718.110(10)’s three-year statute of repose, as it was filed more than three years after the subject declaration was recorded....

...In other words, irrespective of its attempt to wordsmith around the statute of repose, Terrace’s lawsuit, substantively, was “an action to determine whether [the Declaration] . . . complies with the mandatory requirements for the formation of a condominium.” § 718.110(10), Fla. Stat. (2005). Accordingly, Terrace’s lawsuit was subject to and barred by the three-year statute of repose set forth in section 718.110(10). b) Statute of Limitations “Statutes of limitations ‘bar actions by setting a time limit within which an action must be filed as measured from the accrual of the cause of action, after which time obtaining relief is barred.’” Hess, 175 So....

...3d at 368; Hogg, 357 So. 3d at 1275. Conclusion Based on the nature of the relief which Terrace sought, we hold that Terrace’s declaratory judgment action was barred by both the statute of repose set forth in section 718.110(1), Florida Statutes (2005), and the applicable statute of limitations set forth in section 95.11(2)(b), Florida Statutes (2005)....

...For its part, the Association did not oppose the 2 relief requested. DEJ, on the other hand, filed an answer generally denying Terrace’s entitlement to relief and asserting several affirmative defenses, including defenses based on the three-year statute of repose set forth in section 718.110(10) of Florida’s Condominium Act and the five-year statute of limitations applicable to legal or equitable actions based on a contract, as set forth in section 95.11(2)(b), Florida Statutes (2005)....

...Ultimately, Terrace and DEJ filed cross-motions for summary judgment. Considering the parties’ competing motions, the trial court began by rejecting DEJ’s statute of repose and statute of limitations arguments. First, the trial court found section 718.110(10) inapplicable to Terrace’s claims....

...(alteration in original) (quoting Kush v. Lloyd, 616 So. 2d 415, 421-22 (Fla. 1992)). Thus, a statute of repose may bar a cause of action which did not accrue until after the repose period expired. Id. DEJ’s statute of repose defense was based on section 718.110(10), Florida Statutes (2005)....

...declaration and other documents shall be effective under this chapter to create a condominium as of the date the declaration was recorded, whether or not the documents substantially comply with the mandatory requirements of law. § 718.110(10), Fla....

...Id. Specifically, the purchasers alleged “the declaration was defective because 4 there were no common elements.” Id. at 843 n.1. On these facts, the Eleventh Circuit affirmed that the purchasers’ suit was barred by section 718.110(10)’s three-year statute of repose, as it was filed more than three years after the subject declaration was recorded....

...In other words, irrespective of its attempt to wordsmith around the statute of repose, Terrace’s lawsuit, substantively, was “an action to determine whether [the Declaration] . . . complies with the mandatory requirements for the formation of a condominium.” § 718.110(10), Fla. Stat. (2005). Accordingly, Terrace’s lawsuit was subject to and barred by the three-year statute of repose set forth in section 718.110(10). b) Statute of Limitations “Statutes of limitations ‘bar actions by setting a time limit within which an action must be filed as measured from the accrual of the cause of action, after which time obtaining relief is barred.’” Hess, 175 So....

...3d at 368; Hogg, 357 So. 3d at 1275. Conclusion Based on the nature of the relief which Terrace sought, we hold that Terrace’s declaratory judgment action was barred by both the statute of repose set forth in section 718.110(1), Florida Statutes (2005), and the applicable statute of limitations set forth in section 95.11(2)(b), Florida Statutes (2005)....

...AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. HARRIS, C.J., and PETERSON, J., concur. . The standing of the Association to represent the condominium unit owners as a class was not raised below, nor is it raised on appeal. See § 718.110(10), Fla.Stat....

...Paragraph 21B of the Declaration of Condominium states that "[n]o amendment may ... materially alter or modify the appurtenances to the unit ... unless all record owners of units and all record holders of first mortgages approve the amendment." See § 718.110(4), Fla....

amendment by a vote of the unit owners pursuant to section 718.-110(l)(a), Florida Statutes (1986). The injunction

...nd upon the joinder of the record owners of liens on each unit. See §§ 718.1045, .110(8), Fla. Stat. (2002). "An amendment of a declaration is effective when properly recorded in the public records of the county where the declaration is recorded." § 718.110(3), Fla....