Par for the Course: Third District Court of Appeal Sets Condos Further Back with Revised Biscayne 21 Opinion

On July 10, 2025, the Third District Court of Appeal issued a revised opinion in Avila v. Biscayne 21 Condominium, Inc. The revised opinion comes almost a year and a half after the Court's initial ruling, which invalidated an attempt to terminate the condominium with less than 100% approval of the unit owners. The Court did not change its position in the revised opinion, but it did offer a more in-depth discussion of the issues, and it certified a question of great public importance to the Florida Supreme Court. For now, the overall takeaway is that Biscayne 21 will continue to impede redevelopment of many older condominiums in Florida. 

"Voting Rights" vs. "Right to Vote"

The Court expanded on the issue of voting rights in the context of a condominium termination, focusing on whether an amendment lowering the approval threshold from 100% to 80% affected the unit owners' "voting rights." The majority-controlled association argued that it did not because "voting rights" simply refers to the number of votes assigned to each unit owner under the condominium's governing documents—which remained the same. However, the Court disagreed, concluding that "voting rights" is more akin to "voting power," and lowering the threshold from 100% effectively removed each unit owner's power to singlehandedly veto a proposed termination. And since the declaration required unanimous approval for any amendment that altered the unit owners' "voting rights," the Court held the amendment lowering the termination threshold also required unanimous approval. 

Kaufman Language

The Court also re-examined whether the declaration contained "Kaufman language." Generally speaking, "Kaufman language" subjects a declaration to the Condominium Act as it may be amended from time to time. In other words, the presence of Kaufman language in a declaration means that future amendments (even decades later) to the Condominium Act can automatically apply to the condominium even if doing so overrides other, express language in the declaration and impairs contractual obligations.

In this case, the Court determined that the declaration did not contain any Kaufman language as originally recorded. The Court did proceed to note that the association (in 2022) added some "Kaufman language" through a subsequent amendment to the declaration, but found that this amendment did not encompass the contested termination clause. 

Notwithstanding the Court's opinion, the association's plain intent was to operate under the Condominium Act's current termination provisions in Section 718.117, Florida Statutes—in lieu of the termination amendment previously adopted. Specifically, the language added to the declaration in 2022 submitted the building "to condominium ownership, pursuant to . . . the Condominium Act, as amended and/or renumbered from time to time," demonstrating the association's intent to invoke Kaufman across the entire declaration. Yet the Court did not quote this amendment to the declaration, and instead quoted the pre-amendment clause as if the declaration had never been amended. 

Although the revised opinion is more thorough than the previous opinion, the Court's discussion on "Kaufman language" still leaves unanswered questions. For example, it is unclear whether the association's amendment to incorporate "Kaufman language" into the declaration was wholly impermissible to amend a termination provision that requires 100% approval by unit owners—or alternatively, was valid in concept but insufficient in this case to apply the updated termination statute. Either way, there are portions of the revised opinion that seem internally inconsistent on this issue. The Court found that the termination language in the Biscayne 21 declaration does not offend public policy, in contrast to the offending provision in Kaufman itself. This raises the question: does Kaufman language incorporate future Condominium Act amendments only when public policy requires it? If so, does that put courts in the position of determining public policy, which is precisely what the Court states it should not do at the end of its opinion? The Florida Legislature lowered the voting threshold for terminating condominiums precisely because of the public need to redevelop old condominiums, but the Court summarily found that the unanimous voting requirement does not offend public policy.

If the Court intended to hold a declaration could never subsequently incorporate "Kaufman language," or can do so only under very limited circumstances involving "public policy" concerns, then condominiums will essentially lose the right to evolve as economic trends and regulations change over time. Such condominiums will be forever stuck in the past, unable to address concerns that are otherwise being addressed by the Florida Legislature through continuing amendments to the Condominium Act.   

Certified Question to the Florida Supreme Court

Although the revised opinion is effectively the same ruling as before, the Court did agree to certify the following question of great public importance to the Florida Supreme Court:

MAY AN AMENDMENT ALTERING THE VOTING THRESHOLD REQUIRED TO TERMINATE A CONDOMINIUM PASS WITHOUT UNANIMOUS APPROVAL WHERE A CONDOMINIUM DECLARATION BOTH: (1) REQUIRES THE UNANIMOUS APPROVAL OF THE UNIT OWNERS BEFORE EITHER TERMINATING THE CONDOMINIUM OR PASSING ANY AMENDMENT TO THE DECLARATION ALTERING A UNIT OWNER'S "VOTING RIGHTS" AND (2) LACKS LANGUAGE PURSUANT TO KAUFMAN V. SHERE, 347 SO. 2D 627 (FLA. 3D DCA 1977), AUTOMATICALLY INCORPORATING RELEVANT STATUTORY CHANGES INTO SUCH CONTRACTUAL PROVISIONS?

Conclusion

The revised opinion underscores the difficulty of terminating condominiums, especially if a declaration requires unanimous approval and lacks Kaufman language. The opinion may prevent many condominiums from opting in to the current termination statute. The opinion also signals that, for now, the interests of a few may be more important than those of the majority—the antithesis of practically every other condominium law principle. At this point, absent the Third District revising its opinion yet again upon a motion for rehearing (unlikely) or deciding to rehear the case en banc (i.e., all ten judges decide the case, instead of just three), only the Florida Supreme Court or the Legislature can step in and change course on Biscayne 21.