The Florida legislature is considering a new law that would apply universal Kaufman language to all Florida condos and HOAs. Some boards and association practitioners have said this is great news to provide clarity on an otherwise confusing topic. Others say it would lead to disastrous consequences and impairment of contract issues.
Kaufman language is a legal term used in homeowner’s association (HOA) and condominium declarations to incorporate amendments to governing laws. The term comes from the 1977 landmark case, Kaufman v. Shere, 347 So. 2 d 627 (Fla 3 DCA 1977).
Why is Kaufman language important?
- It protects associations from statutory language that might not be enforceable
- It can determine whether new laws apply to a community
- It can prevent different laws from governing neighboring communities
How does Kaufman language work?
- It includes the phrase “as amended from time to time”
- It allows new laws to automatically become part of the declaration
What should I do?
- Check your governing documents to see if they include Kaufman language
- Consult with legal counsel to determine which new laws affect your community
- Consider adopting amendments to your governing documents that include Kaufman language. The amendments can be to the entirety of the covenants, or just to certain parts
What are the consequences of not having Kaufman language?
- It can lead to uncertainty about whether new laws apply to your community
- It can create a confusing landscape where different laws govern neighboring communities
For example, if a declaration provides, “This association shall be governed by Chapter 720 of the Florida Statutes, as same may be amended from time to time.”, arguably, any future changes to Ch. 720 would automatically be incorporated to the laws of that community. Without that 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). 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. However, whether a law is procedural or substantive in nature is open to controversy, usually at the price of significant time delays and legal expenses.
The Legislature has not yet provided the text of the proposed law(s) to Ch. 718 or 720 yet. We continue to monitor for any legislative updates on this issue.