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The Importance of Applying Legislative Changes to Existing Documents
In the last few years, case law has determined that certain statutory language (i.e., the safe harbor provision) is not enforceable by associations when the association’s governing documents were recorded prior to the date that the statute was passed and the phrase “as amended from time to time” is not included in the association’s declaration. If this phrase is not included in the declaration, arguably the law in existence as of the date of the recording of the association’s declaration would be in effect. The “as amended from time to time” language allows for future legislative amendments to automatically apply to the documents. Attorneys refer to the “as amended from time to time” phrase as the “Kaufman” language. This term originated from the 1977 case of Kaufman v. Shere, which provided that when the Kaufman language exists, legislative statutory changes apply to the existing documents.
For example, if a declaration provides that a third party purchaser who takes title to a property through foreclosure is not liable for unpaid assessments, then an argument can be made the association is not entitled to collect any amounts owed. That is, unless the declaration includes the Kaufman language.
When a declaration does not contain Kaufman language, the determination of whether new laws are applicable depends on whether the statutory amendments are procedural (affecting simply how laws are carried out) or substantive (an actual change to rights or regulations). However, whether a law is procedural or substantive in nature is open to controversy.
The extent of the applicability of this principle to various provisions of Florida Statutes, Chapter 718 and Chapter 720 is debated and will only be determined by the courts as the issues are litigated. In the meantime, however, we urge associations to look at their governing documents and determine whether or not the documents contain the “Kaufman” language.
If you have any questions in regard to this or if you would like to discuss your specific governing documents and the process for amendment thereto, please do not hesitate to call and we will be happy to assist you.
Alessandra Stivelman, partner at Eisinger Brown Lewis Frankel & Chaiet,
P.A. is AV rated and focuses her practice on community association and real estate law.