Florida Cohn v. Grand Condominium Ass'n (Fla. 2011): Retroactive Statutes and Declarations

Quick Answer

In Cohn v. Grand Condominium Ass'n, Inc., 62 So.3d 1120 (Fla. 2011), the Florida Supreme Court held that a 2007 amendment to section 718.404(2), which said it applied "retroactively as a remedial measure," could not be applied to The Grand Condominium. Doing so would impair the contract created by a 1986 declaration that adopted the Condominium Act as it stood on the recording date, in violation of article I, section 10 of the Florida Constitution.

The decision is short, but it is a core Florida case on when a new condominium statute can change the rights written into an older declaration.

At a Glance

The Dispute

The Grand is a mixed-use condominium organized in 1986 with 810 residential units, 259 commercial units and 141 retail units. Its articles, declaration and bylaws set up a seven-member board: two directors elected by each of the residential, commercial and retail owners, and a seventh elected at large. Under the declaration the retail and commercial owners together held majority vote control of the board.

In 1995 the Legislature enacted section 718.404, regulating mixed-use condominiums. Subsection (2) provided that in mixed-use condominiums that are fifty percent or more residential, the residential owners must be entitled to vote for a majority of the board seats. In 2007 the Legislature added: "This subsection shall apply retroactively as a remedial measure."

Susan Cohn, a residential owner, then asked The Grand to change its voting system to match. The Grand filed a declaratory judgment action asking the court to hold that applying section 718.404(2) retroactively would be an unconstitutional impairment of contract. The trial court granted summary judgment to The Grand, and the Third District affirmed.

What the Court Held

The declaration is a contract

The court began with the nature of a declaration. It "possesses 'attributes of a covenant running with the land' and operates as a contract among unit owners and the association, 'spelling out mutual rights and obligations of the parties thereto,'" quoting Woodside Village Condominium Ass'n v. Jahren (Fla. 2002).

This declaration did not take in later amendments

The Grand's 1986 declaration adopted the terms of "the Condominium Act of the State of Florida (Florida Statute 718, et seq.) in effect as of the date of recording this Declaration." It did not contain "as amended from time to time" language that would subject it to future statutory changes. The court cited Angora Enterprises v. Condominium Ass'n of Lakeside Village (11th Cir. 1986) and Sans Souci v. Division of Florida Land Sales and Condominiums (Fla. 1st DCA 1982) for the idea that the date the declaration was filed fixes the parties' rights and obligations when asking whether a statute impairs a contract.

Retroactive application would impair the contract

Because the declaration gave commercial and retail owners collective control of the board, applying the 2007 retroactivity clause "would alter the rights of The Grand's unit owners in contravention of their contractual agreement" by changing the distribution of voting power. Article I, section 10 prohibits any "law impairing the obligation of contracts," so the court affirmed. It cited Pomponio v. Claridge of Pompano Condominium, Inc. (Fla. 1979) and Dewberry v. Auto-Owners Insurance Co. (Fla. 1978).

Limits

The ruling is "as applied" to The Grand. The court did not strike section 718.404(2) down generally. It did not set out a test for every retroactive condominium statute in the text we read. We did not read the current version of section 718.404 for this page.

Why It Matters for Associations

• The recording date and the declaration's wording matter. Cohn contrasts a declaration frozen to the Act "in effect as of the date of recording" with one that adopts later changes. See our Kaufman v. Shere page for the "as amended from time to time" side.
• A retroactivity clause does not end the question. Even when the Legislature says a statute applies retroactively, the constitution limits impairing an existing contract, at least as applied to the declaration in Cohn.
• Control of the board can turn on it. The case concerned who elects a majority of directors, so mixed-use communities with commercial or retail units should have counsel read the declaration before changing election rules.
• Later cases build on it. The Third District cited Cohn in 2018 for the point that a declaration is a contract (Dimitri v. Commercial Center of Miami Master Ass'n), and our Avila page discusses the same theme for termination votes.
• Our reading: this is not a rule that old declarations are immune to every new statute. It protects specific contractual rights, such as vote allocation, from retroactive statutory change when the declaration did not adopt future amendments.

Related Florida Law

• Kaufman v. Shere (1977): amendments clause
• Avila v. Biscayne 21 (3d DCA 2025)
• Woodside Village v. Jahren (Fla. 2002)
• De Soleil South Beach (3d DCA 2021)
• Chapter 718: the Condominium Act
• Florida HOA laws complete guide

Board Checklist

• Find the original recording date of the declaration and any clause adopting the Condominium Act.
• Note whether it adopts the Act "as amended" or as of a fixed date.
• For mixed-use or multi-class communities, map how board seats are allocated in the documents.
• Before relying on a retroactive statute to change voting or election rules, have counsel review it against the declaration.
• Keep copies of the full recorded declaration and all amendments in the official records.
• Tell owners that results differ by community, because each declaration is its own contract.

Frequently Asked Questions

What did Cohn v. Grand Condominium decide?

That applying the 2007 retroactivity clause in section 718.404(2) to The Grand would unconstitutionally impair the contract in its 1986 declaration.

Did the court strike down section 718.404(2)?

No. It held the statute could not be applied retroactively to The Grand. The decision is as applied.

Why did the declaration's wording matter?

It adopted the Act as of the date of recording and had no "as amended from time to time" language, so the court treated the 1986 rights as fixed.

Does Cohn apply to HOAs?

It concerned a condominium declaration and Chapter 718. The contract-impairment principle may be argued elsewhere, but we cannot say how it would apply to an HOA without counsel review.

What is the correct citation?

62 So.3d 1120. One secondary source printed a different volume number; the Third District's 2018 opinion cites 62 So.3d 1120, which we rely on.

Is section 718.404 the same today?

We did not read the current text for this page. Check the current statute before relying on it.

Where This Comes From

We read the full text of the Florida Supreme Court's opinion in No. SC10-430 (March 31, 2011), and the Third District's 2018 opinion in Dimitri, which cites the case as 62 So.3d 1120. We did not verify the rehearing history or the current text of section 718.404. The opinion is at FindLaw.

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Legal disclaimer: This article is general information, not legal advice. Laws change and associations differ. Confirm the current statute text and how it applies to your governing documents with a licensed Florida attorney before acting.