J.W. from Fairfield County writes:
Dear Mister Condo,
What are the implications for a condo association or Board of Directors if the association’s documents have not been updated to comply with the 2010 changes to CT condo law?
Mister Condo replies:
J.W., that is a great question with a few different answers. The short answer is that federal law trumps state law and state law trumps your condominium’s governing documents, regardless of what provisions they actually contain. If your condo documents have not been updated or amended to reflect the changes in the 2010 revisions to the Connecticut Common Interest Ownership Act, the association is still bound to observe and respect the provisions of the law or it could find itself in some hot water with unit owners who seek to exercise their rights under the law. That being said, there can be a significant cost and effort to revising condominium documents and many communities simply keep their existing documents in place and either observe the laws as a matter of practice or have a less expensive treatment called a document overlay as an amendment to their current documents. This method saves the association money and also allows for compliance with the CIOA revisions as part of their governing documents. Whether the documents are updated or not, the state law supersedes and must be observed. All the best!
Do Condo Documents Have to Be Updated When Laws Change?: https://t.co/fHytFxusOg
This may be Florida specific but it does speak to the question. Kaufman Language, named after the 1977 case of Kaufman v. Shere, is language contained within a declaration that expressly incorporates subsequently-enacted amendments to the Florida Statutes into the association’s governing documents. An example of Kaufman Language is a clause that states “this Declaration is governed by the Florida Condominium Act, Chapter 718, Florida Statutes, as it exists on the date hereof and as it may be amended from time to time.” (Emphasis added.) The emphasized portion—“and as it may be amended from time to time”—is the Kaufman Language, which effectively incorporates all future statutory amendments into the declaration. Without that phrase, or similar language qualifying as Kaufman Language, an association is subject to substantive Florida law as it existed at the time of the association’s development. If this applies to your association, then it is, effectively, stuck in the past.
There have been many favorable statutory amendments to the Acts over the past decade to help associations on substantive issues involving the collection of assessments, suspending use rights to amenities for rules violations, and other areas. Without Kaufman Language, associations developed prior to these favorable amendments cannot take advantage of these beneficial changes to Florida law. While many of the Acts’ amendments have been very favorable to associations, it is important to note that Kaufman Language is a sword that cuts both ways, and that its inclusion in association’s governing documents will incorporate all future statutory amendments—even if it is an amendment the association may not want. It is therefore worth it to have an experienced association attorney review your association’s governing documents to determine whether Kaufman Language exists. If it does not, then the question of whether it would be beneficial to amend the governing documents to include Kaufman Language is worth exploring so that your association may take advantage of all statutory amendments.