Avila v. Biscayne 21: Third District Reinforces Declaration Unanimous Consent Requirements for Condominium Terminations

The Florida Third District Court of Appeal’s revised opinion in Avila v. Biscayne 21 Condo., Inc., 50 Fla. L. Weekly D1509 (Fla. 3d DCA July 10, 2025), has significantly reinforced legal barriers to condominium termination in Florida, establishing critical precedent regarding voting rights and unanimous consent requirements that will impact condominium associations, developers, and unit owners throughout the state.

The dispute arose when TRD Biscayne, LLC acquired multiple units at the Biscayne 21 Condominium for redevelopment purposes. The original 1974 declaration required “unanimous agreement of the Unit Owners and all institutional mortgagees” to terminate the condominium. Id. at *8. After gaining board control, TRD Biscayne amended the declaration in August 2022 to lower the termination threshold from 100% to 80%, consistent with current Florida Condominium Act provisions under section 718.117(3), Florida Statutes. Remaining unit owners, led by the plaintiff Angelica Avila, challenged this amendment and sought a temporary injunction. The trial court denied their request, but the Third District reversed.

The Third District rejected the association’s narrow interpretation that voting rights merely refer to the mechanical right to cast votes. Instead, the court determined that changing the termination threshold from unanimous consent to 80% approval materially altered each unit owner’s voting rights by eliminating their individual veto power. Under the original declaration, every unit owner possessed an effective veto that could prevent termination. The amendment stripped away this fundamental right.

The court emphasized that contractual interpretation requires examining terms in context. The declaration’s amendment provision explicitly required 100% approval for any amendment “altering the voting rights of any of the Owners of the Condominium.” Removing individual veto power was found to have constituted such an alteration, triggering the unanimous consent requirement.

The court also determined that the Biscayne 21 declaration lacked adequate Kaufman language to automatically incorporate future changes in the Florida Condominium Act, distinguishing it from Kaufman v. Shere, 347 So. 2d 627 (Fla. 3d DCA 1977). While the declaration referenced the Condominium Act “as amended,” this language was found to be insufficient to override specific contractual provisions requiring unanimous consent. The court noted that “[a]bsent Kaufman language, an amendment to the Condominium Act will not have retroactive application to a condominium’s Declaration if it impairs contractual obligations.” Id. at *18.

The decision creates substantial obstacles for condominium redevelopment projects, particularly those involving older buildings with unanimous consent requirements. The ruling prevents associations from unilaterally lowering termination thresholds through majority votes, even when seeking alignment with current statutory requirements.

Recognizing the broad implications, the Third District certified a question of great public importance to the Florida Supreme Court regarding whether amendments altering voting thresholds can pass without unanimous approval when the declaration requires such consent for voting rights changes and lacks adequate Kaufman language.

In sum, the Third District’s opinion represents a challenge for condominium redevelopment efforts in specific cases where the Declaration . The decision prioritizes contractual interpretation and protection of voting rights, emphasizing adherence to original agreements between parties. As the case potentially moves toward Supreme Court review, stakeholders continue to grapple with the tension between individual property rights and collective redevelopment desires.

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