Florida Avila v. Biscayne 21 Condominium (3d DCA 2025): Lowering Termination Thresholds

Quick Answer

In Avila v. Biscayne 21 Condominium, Inc., Florida's Third District Court of Appeal held on July 10, 2025 that an amendment lowering a condominium's termination vote from unanimous to 80 percent "impacts the voting rights of the unit owners." Because this declaration required 100 percent approval to amend voting rights, a majority vote could not make the change. The court also found the declaration lacked "Kaufman language" that would automatically pull in the newer statutory threshold, and it certified a question to the Florida Supreme Court. That court declined review on October 14, 2025.

The ruling turns on the wording of one 1974 declaration, but the reasoning matters to any older community whose documents require unanimity.

At a Glance

The Dispute

Biscayne 21's 1974 declaration submitted the property to condominium ownership under Chapter 711, "the Condominium Act, as amended." It provided that termination "may be effected by the unanimous agreement of the Unit Owners" (the declaration also named institutional mortgagees). It allowed most amendments by 51 percent of members, but "an amendment altering the percentages of ownership in the Common Elements or the voting rights of any of the Owners" required approval of 100 percent of owners. A second clause said no amendment could change "the voting rights appurtenant to any Unit" unless the affected owners joined.

The developer TRD Biscayne began buying units in bulk in May 2022 and, through those units, took over the board. In August 2022 the new board, over owner objection, amended the declaration in two ways: it replaced the unanimity requirement for termination with 80 percent, and it changed the declaration's reference to the Condominium Act to read "as amended and/or renumbered from time to time." In September 2022 the association approved a plan of termination, again over objection. In December 2022 it conveyed the property, including the objecting owners' units, to TRD Biscayne.

The owners sued for a temporary injunction. The trial court denied it on the ground that changing the threshold did not affect "voting rights" and so a majority could make the amendment. It did not rely on the Kaufman argument. The owners appealed.

What the Court Held

Lowering the threshold changes voting rights

The court read "voting rights" in context, not as only the bare right to cast a vote. It reasoned that requiring a unanimous vote to terminate "gave every unit owner an effective veto," and that an amendment removing it altered a characteristic of owners' voting rights: "they no longer have the characteristic of a veto." The word "altering," it said, "doesn't mean the same thing as 'eliminating.'" It rejected the argument that a bylaw sentence giving one vote per unit defined voting rights, calling it a description of how votes are counted, not a definition. It relied on an earlier Third District decision, Tropicana Condominium Ass'n v. Tropical Condominium, LLC (2016), which it described as refusing to apply non-unanimous amendments that lowered a termination vote where the declaration required unanimity to amend the termination provision.

No Kaufman language

The court said "Kaufman language" is language that automatically incorporates later amendments to the Condominium Act into the declaration, referring to Kaufman v. Shere (Fla. 3d DCA 1977). It found only a recital that the property was submitted "pursuant to Chapter 711, Florida Statutes, the Condominium Act, as amended." That, it said, was "a mere recital." The court gave three reasons Kaufman did not control: the declaration lacked a clause adopting the Act as amended into the contested provision, the 1974 declaration contained no general clause that Act amendments override contrary language, and the 2022 statutory change did not declare the owners' unanimity clause void as against public policy. The new law, it noted, "contains no expression of retroactivity." The specific termination and amendment clauses controlled over the general submission clause. It also noted that, "Absent Kaufman language, an amendment to the Condominium Act will not have retroactive application to a condominium's Declaration if it impairs contractual obligations."

Certified question and result

The court certified this question as one of great public importance: whether an amendment altering the voting threshold to terminate may pass without unanimous approval where a declaration both requires unanimous approval to terminate or alter voting rights and lacks Kaufman language incorporating statutory changes. It said it does not "set policy" and that the owners had "shown a substantial likelihood of success on the merits," so it reversed and remanded for entry of a temporary injunction.

Supreme Court

The Florida Supreme Court's October 14, 2025 order in SC2025-1169 states the court "should decline to exercise jurisdiction" and the petition for review "is denied." Justices Couriel and Francis would have granted oral argument. The order gives no reasoning on the merits.

Limits

This was a temporary injunction appeal, so the court addressed likelihood of success, not final judgment. The opinion does not decide how a declaration with different wording, or one that does include Kaufman language, would be treated. It did not discuss the current text of section 718.117.

Why It Matters for Associations

• Read the amendment clause first. If your declaration requires unanimity, or a supermajority, to change "voting rights," Avila says a change to a voting threshold can fall inside that protection.
• "Condominium Act, as amended" may not be enough. Boards should not assume a general reference to the Act brings in later statutory changes. The court found a general submission recital insufficient.
• Developers and bulk buyers. The case shows that taking board control and amending the declaration by majority can be challenged where the document requires unanimity.
• Our reading: the holding is tied to this declaration's words, so each community needs its own review. Whether amendments adding Kaufman language after the fact can work for termination provisions is not decided here.

Related Florida Law

• Kaufman v. Shere (1977): amendments clause
• Cohn v. Grand Condominium Ass'n (2011): retroactivity
• De Soleil South Beach (2021): a related Third District case
• Chapter 718: the Condominium Act
• Florida HOA laws complete guide

Board Checklist

• Find the termination, amendment and voting rights provisions in your declaration and bylaws and note the vote each requires.
• Search the declaration for any clause adopting the Condominium Act "as amended from time to time" and note exactly where it appears.
• Do not schedule a vote to change a termination or voting threshold before counsel reviews the amendment clause.
• If a developer or investor owns many units, ask counsel how votes and any proposed amendments are affected.
• Keep copies of recorded amendments and the plan of termination process under section 718.117 for owner questions.
• Tell owners that this ruling is about one declaration, and that their documents may differ.

Frequently Asked Questions

What did the Avila v. Biscayne 21 court decide?

That changing a termination vote from 100 percent to 80 percent changed the unit owners' voting rights under this declaration, and that the declaration did not contain Kaufman language that applied the new statutory threshold automatically.

Does this mean Florida condominiums can never lower a termination threshold?

No. The court addressed this declaration's words. It did not hold that no condominium can do so.

What is Kaufman language?

The court described it as language in a declaration that automatically incorporates amendments to the Condominium Act, named for Kaufman v. Shere (Fla. 3d DCA 1977).

Did the Florida Supreme Court rule on the issue?

The Supreme Court denied review on October 14, 2025 without opinion on the merits. A denial of review is not a decision that the lower court was right on every point.

Is this a final judgment against the developer?

No. The Third District reversed the denial of a temporary injunction and remanded. The case posture was a preliminary one.

Does the case apply to HOAs?

It concerned a condominium declaration and the Condominium Act. We cannot say how it applies to an HOA without a review of that community's documents and the HOA statute.

Where This Comes From

We read the full text of the Third District's revised opinion on rehearing (No. 3D23-1616, July 10, 2025) as posted on CourtListener, and the Florida Supreme Court's October 14, 2025 order in SC2025-1169 on the court's online docket. We did not verify an official reporter citation, any later proceedings in the trial court, or the current text of section 718.117. The opinion is on CourtListener.

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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.