.jpg?h=300&w=500&rev=417ffdca429c4311817a70999c821147&hash=620D9B1290F7F3378C7228C17F3D6B3E)
On October 14, 2025, approximately three months after the revised opinion in Avila v. Biscayne 21 Condominium, Inc., 50 Fla. L. Weekly D1509 (Fla. 3d DCA July 10, 2025), the Florida Supreme Court declined to accept jurisdiction over the Third District Court of Appeal’s certified question on condo terminations. This means Biscayne 21 remains intact and, for the time being, the resulting cloud of uncertainty still hangs over all similarly situated condos throughout Florida.
As previously discussed, one of the key holdings from Biscayne 21 is that lowering a termination threshold from 100% alters the unit owners’ “voting rights” because it eliminates each owner’s implied veto power over the termination. As a result, lowering the threshold requires unanimous owner approval when both the threshold to terminate and the threshold to alter “voting rights” are 100%, regardless of the declaration’s default threshold (often far less than 100%) for amending the declaration.
Additionally, the Biscayne 21 court found that the attempt to add “Kaufman language” to the declaration to incorporate the current version of Section 718.117, Florida Statutes, did not alter the termination provision. The court reasoned that there was no conflict between the declaration and the Condominium Act because the declaration can include a higher (but not necessarily lower) approval threshold than the 80% requirement in the Florida Condominium Act. The court’s analysis, however, leaves open questions about when, if ever, subsequently added “Kaufman language” can validly apply to termination provisions that require unanimity. Regardless of the answer, Biscayne 21 seemingly overlooked the fact that the operative attempt to terminate was via the current termination statute, and instead examined the initial attempt by the bulk owner and association to lower the voting threshold in the declaration.
Practical Implications
The practical implications (at least for now), regardless of whether a given condominium declaration contains similar language as Biscayne 21 regarding amendments that affect voting rights, is that condos with unanimous approval requirements for termination cannot amend their declarations to circumvent each unit owner’s implied veto right. This greatly shifts the bargaining dynamics in favor of the holdouts, which will undoubtedly increase acquisition and termination costs and extend the timeline for terminating. The Biscayne 21 opinion also underscores the need for careful due diligence. Failing to catch certain language in a declaration could ultimately delay, or even prevent, termination unless all the unit owners are on the same page financially.
Future Relief
Though Biscayne 21 is a setback from the developer’s perspective, there may eventually be some relief in this area. If even one of Florida’s five other appellate courts reaches a different outcome, the Florida Supreme Court may have to reconsider the issue to resolve the conflict. Also, the Florida Legislature may need to make further changes to Chapter 718 to relieve the mounting financial and safety concerns posed by older condos that are ripe for termination (e.g., reconsidering prior attempts to amend Section 718.117(2), Florida Statutes, on termination because of economic waste or impossibility).
Until such time, Biscayne 21 is legal precedent that binds every single trial court across the state (unless and until another appellate court disagrees). Anyone considering a (re)development involving a termination needs to take a fresh look at this issue. For guidance on specific declarations, transactional structuring, or litigation risks surrounding terminations strategies post-Biscayne 21, please reach out to a member of Bilzin Sumberg’s condominium redevelopment team.
