A recent Florida appeals court decision could have broad implications for property developers and unit owners — especially for those seeking exit strategies from aging, financially burdened buildings in the wake of Florida’s 2021 condo safety laws.
Florida’s development and condominium community has closely analyzed the long-awaited decision in Avila et al. v. Biscayne 21 Condominium, Inc., in which the Third District Court of Appeal ruled against a property developer based on the unique provisions found in this particular condominium’s governing declaration. The Florida Supreme Court ultimately declined to review and rule on the case, leaving the appellate decision in place.
At issue in Biscayne 21 was whether the Biscayne 21 Condominium Association — under control of a developer owning the majority of units — could amend the condominium declaration to reduce the threshold for termination of a condo association from unanimous consent to 80%, the current statutory floor. The declaration was unusual in that it required unanimous approval for termination and also required unanimous consent for any amendment that altered “voting rights.” The trial court initially sided with the developer, reasoning that changing the voting threshold for termination did not impair voting rights and, therefore, the threshold provision could be amended by a majority vote.
The Third DCA disagreed and reversed. The court held that the requirement of unanimous consent to terminate essentially created a veto power for unit owners, which constitutes a form of voting right. Any attempt to strip that veto — even indirectly by reducing the voting threshold — altered voting rights and thus required unanimous consent. This ruling reaffirms that, absent language that automatically incorporates future state law into declarations (known as Kaufman language), the plain language of the declaration, no matter how strict, will prevail.
While Biscayne 21 was a setback for this particular developer, it should be seen more as a cautionary tale than a blanket obstacle. The decision was rooted in the specific, uncommon language in the Biscayne 21 declaration — particularly the dual requirement of unanimity for both termination and any amendment to voting rights. Most modern declarations do not include such rigid provisions.
Beyond the specifics of this case, the ruling raises questions about how Florida will address its growing inventory of aging condominiums. Following the Surfside tragedy and the passage of strict reserve funding requirements, many older buildings are financially untenable to maintain, placing immense pressure on associations and unit owners.
For unit owners who want to get out — especially in buildings facing costly repairs — the ruling may feel like a double-edged sword. On the one hand, it protects owners from forced termination without their consent in condominiums with similarly worded declarations. On the other hand, it reinforces that outdated and rigid declarations can effectively trap them in deteriorating associations. Unless their condo’s declaration has Kaufman language or is amended appropriately, unit owners looking to sell through termination must still comply with the original terms of the declaration.
For developers, the takeaway is not to be deterred, but to be diligent. The ruling underscores the need for thorough due diligence during the acquisition phase, particularly a careful legal review of the governing documents. Developers should not interpret the Biscayne 21 decision as having a chilling effect on the redevelopment of the condominium market. For the vast majority of condominium declarations, especially those containing more flexible amendment language, termination remains very much achievable.
The key is to vet declarations early and identify any rigid clauses, negotiate upfront amendments to allow for flexibility before acquiring large blocks of units, build alliances with associations, and use clear, transparent communication with owners to avoid litigation. While Biscayne 21 may fuel more litigation in buildings with similarly worded condominium declarations, it also offers developers a roadmap of what to avoid and how to move forward successfully.
The Biscayne 21 ruling, though notable, is not a deterrent for redevelopment, nor is it a total obstruction to unit owners looking to terminate their condominium. Instead, it underscores the necessity of careful legal navigation. With strategic foresight and a commitment to due diligence, developers still have a clear and viable path forward in the transformation of Florida’s aging condo landscape.
Brianna Sainte, Jamie Katz and Juan Farach are attorneys at Miami-based Shubin Law Group.
