Amending the Declaration of Condominium



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Amending the Declaration of Condominium

    • General Method of Amendment

The Declaration of Condominium may provide a method for its own amendment. Thus, it is extremely important that the Declaration is carefully reviewed to determine if a method of amendment is set forth in the Declaration. If it does not, Section 718.111 of the Florida Statutes provides that the owners of not less than two-thirds of the units may approve an amendment to the Declaration.

    • Text Requirements for Amendment. i.e. underline and hyphen usage

Section 718.111 of the Florida Statutes provides that no provision of the declaration may be revised or amended by reference to a title or number of a provision. Instead, proposals to amend existing provisions of the Declaration must contain the full text of the provision to be amended; new words shall be inserted in the text and underlined; and words to be deleted shall be lined through with hyphens. However, if the proposed change is so extensive that this procedure would hinder the understanding of the proposed amendment than a notation immediately proceeding the proposed amendment may be used instead. The notation shall use substantially the following language: “Substantial rewording of declaration. See provision for present text.”

    • Certificate of Amendment

Amendments must be evidenced by a certificate executed with the formalities of a deed, and shall include the recording data identifying the Declaration, and the certificate shall be signed and acknowledged by the Association responsible for the operation of the condominium. The amendment shall become effective when it is recorded in the public records of the county where the declaration is recorded.

    • Enforceability of Amendments

In determining the enforceability of an amendment to a declaration, the test is one of reasonableness. That is, the power to amend must be exercised in a reasonable manner so as not to destroy the general plan of development. Absent irregularities, the courts will generally not involve themselves in the amendment process.

    • Prohibited Amendments

Unless explicitly provided for otherwise in the originally recorded declaration, no amendment may change the configuration or size of any condominium unit in any material way, nor may it materially change the appurtenances to the unit, or the percentage of each owner’s share of the common expenses and common surplus.

    • Correction of Errors and/or Omissions

In addition to the foregoing amendment procedure, if there is an omission or error in a declaration of condominium or in other documents required by law to establish the condominium, the Association may correct the error or omission by an amendment to the declaration or other document required to create the condominium, in the manner provided in the declaration, or if none is provided, then by a vote of a majority of the unit owners. This procedure for amendment, which is set forth in Section 718.110 (9) of the Florida Statutes, cannot be used if such an amendment would materially or adversely affect property rights of unit owners. This section authorizes a simple process of amendment requiring a lesser vote for the purpose of curing defects, errors, or omissions when the property rights of unit owners are not materially or adversely affected. In addition, pursuant to Section 718,110 (10), if there is an omission or error in a declaration of condominium, or other document required to establish the condominium, that would effect the valid existence of the condominium and that may not be corrected by amendment, then the Circuit Courts have jurisdiction to entertain petitions of one or more unit owners, or the association, to correct the error or admission.

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