Angelica Avila v. Biscayne 21 Condominium, Inc., Etc.

• Court: District Court of Appeal of Florida
• Decided: July 10, 2025
• Docket: 3D2023-1616
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed July 10, 2025.

THIS OPINION IS NOT FINAL UNTIL DISPOSITION OF ANY FURTHER MOTION FOR REHEARING AND/OR MOTION FOR REHEARING EN BANC. ANY PREVIOUSLY-FILED MOTION FOR REHEARING EN BANC IS DEEMED MOOT.

________________

No. 3D23-1616 Lower Tribunal No. 23-16774 ________________

Angelica Avila, et al., Appellants,

vs.

Biscayne 21 Condominium, Inc., etc., et al., Appellees.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Thomas J. Rebull, Judge.

Armstrong Teasdale LLP, and Glen H. Waldman and Jeffrey R. Lam, for appellants; Mager Paruas, LLC, and Scott Mager and Gary S. Gaffney (Hollywood), for appellant Franah Vazir-Marino.

Coffey Burlington, P.L., and Susan E. Raffanello for appellee TRD Biscayne, LLC; Cole, Scott & Kissane P.A., and Therese A. Savona (Orlando), for appellee Biscayne 21 Condominium, Inc.; Lawson Huck Gonzalez, PLLC, and Jason Gonzalez (Tallahassee), Jessica Slatten (Tallahassee), and Robert E. Minchin III (Tallahassee), for appellee TRD Biscayne, LLC.

Frank A. Shepherd, P.A., and Frank A. Shepherd, for the Florida Chamber of Commerce, as amicus curiae.

DLA Piper LLP (US), and Harout J. Samra and Marie Bussey-Garza (Philadelphia, PA), for Castle Beach Club Condominium Association, Inc., and Miami Beach Club Motel Condominium Association, Inc., as amici curiae.

Greenberg Traurig, P.A., and Brigid Cech Samole, and David B. Weinstein (Tampa), Ryan T. Hopper (Tampa), and Jennifer M. Faggion (Tampa), for The Related Group, Fortune International Equity Corporation, Dezer Development LLC, and 13th Floor Manager, LLC, as amici curiae.

Before FERNANDEZ, LOBREE and BOKOR, JJ.

BOKOR, J.

ON MOTION FOR REHEARING

We deny the Association and Developer’s motion for rehearing but

substitute the following revised opinion.1

Unit owner Angelica Avila and several other unit owners at the

Biscayne 21 Condominium didn’t take the money. Instead, the Owners voted

against selling their units to TRD Biscayne, LLC, a developer attempting to

1 The last pleading directed at the motion for rehearing was TRD Biscayne, LLC’s April 25, 2025 renewed motion to expedite or, in the alternative, motion to lift stay. Avila responded on May 6, 2025. We deny the motion as moot upon the issuance of this opinion. Additionally, the “substantial revision of a majority opinion by the assigned panel renders moot an accompanying motion for rehearing en banc.” §15, Third District Court of Appeal Internal Operating Procedures (amended Nov. 7, 2022).

2 terminate the condominium to redevelop and resell the property. The

declaration of condominium required the unanimous assent of all unit owners

to terminate the condominium. But the Association, acting on behalf of TRD

Biscayne and now the owner of most of the units, didn’t take no for an

answer. Instead, the Association amended the declaration to change the

unanimity requirement in the declaration to the current statutory floor of at

least 80% of the unit owners’ assent to terminate the condominium. The

Owners filed suit and sought an injunction to block this change and the

resulting termination, arguing that the declaration contained provisions

requiring unanimity to terminate the condominium or amend any provision

that impacts the voting rights of the unit owners. The trial court denied the

temporary injunction, finding that an amendment to the voting threshold for

termination from “the unanimous agreement of the Unit Owners” to 80% of

the unit owners could be accomplished with a majority vote because such

amendment didn’t impact voting rights. The Owners appealed.2 As explained

below, we hold that an amendment changing the voting threshold for

termination from 100% to 80% impacts the voting rights of the unit owners.

2 We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(B).

3 We also analyze the declaration and find it does not contain Kaufman 3

language automatically incorporating the amended statutory threshold.

I.

On December 10, 1974, through its recorded declaration of

condominium, Biscayne 21 Condominium submitted “to condominium

ownership, pursuant to Chapter 711, Florida Statutes, the Condominium Act,

as amended.” Article XIII.A. of the declaration expressly incorporated the

then-existing statutory requirement of unanimity to terminate a condominium

under section 711.16(1), Florida Statutes (1974): “The termination of the

Condominium may be effected by the unanimous agreement of the Unit

Owners . . . .” Article XII.A.2 of the declaration, governing amendments to

the declaration, required the consent of 51% of the unit owners for most

matters, but “an amendment altering . . . the voting rights of any of the

Owners of the Condominium . . . shall require the approval of one hundred

(100%) percent of the Owners.” Additionally, Article XII.C provided that: “No

amendment shall change . . . the voting rights appurtenant to any Unit,

unless . . . all record owners . . . shall join in the execution of such

amendments.”

3 Kaufman v. Shere, 347 So. 2d 627 (Fla. 3d DCA 1977).

4 The Owners purchased their units under this declaration with all the

attendant rights and responsibilities. Over the years, like many older

condominium buildings in Miami and beyond, Biscayne 21 attracted the

attention of investors and developers. The condominium retained a

commercial real estate firm to market the more than 170 units to interested

parties, including developers like appellee TRD Biscayne. TRD Biscayne

began purchasing units in bulk in May 2022 and, as owner of a substantial

number of units, sought to terminate the condominium.

TRD Biscayne exercised its voting rights through the units it owned to

take over the board of directors of the Association. In August 2022, the new

board successfully approved, over objection of the Owners, two relevant

amendments to the declaration. First, the board eliminated the unanimity

requirement to terminate the condominium, replacing it with an 80%

requirement consistent with the amended Condominium Act, which lowered

the minimum threshold for termination from 100% to 80%. Second, the board

amended Article I of the declaration to change the relevant language

submitting to condominium ownership “pursuant to Chapter 71811, Florida

Statutes, the Condominium Act, as amended and/or renumbered from time

to time” (new language underscored, deleted language struck through). The

5 amendment also added a definition of Condominium Act in section 20 of

Article II consistent with the amended language.

In September 2022, the Association approved a plan of termination,

again over the objection of the Owners. In December 2022, the Association

conveyed the former condominium property to TRD Biscayne, including the

Owners’ units. This Owners sued and requested a temporary injunction,

which the trial court denied. The trial court found that the original

declaration’s submission to condominium in the initial clauses under the

Condominium Act “as amended” did not trigger the automatic incorporation

of the 80% threshold under Kaufman. The trial court nonetheless denied the

injunction because it found that the Association properly amended the

declaration, as the amendment of the unanimity provision didn’t impact

voting rights and was therefore subject to amendment by majority vote

pursuant to Article XII.A.2. This appeal follows.

II.

For a temporary injunction, the moving party must show “(1) a

substantial likelihood of success on the merits, (2) the unavailability of an

adequate remedy at law, (3) irreparable harm absent entry of an injunction,

and (4) that the injunction would serve the public interest.” Fla. Dep’t of

Health v. Florigrown, LLC, 317 So. 3d 1101, 1110 (Fla. 2021). To the extent

6 the trial court’s decision to grant or deny an injunction is based on factual

findings, our review is for abuse of discretion, but we review the court’s legal

conclusions, and interpretation of statutory and contractual provisions, de

novo. Id.; Quirch Foods LLC v. Broce, 314 So. 3d 327, 337 (Fla. 3d DCA

2020).4

III.

The declaration of condominium, often referred to as the

condominium’s “‘constitution,’ strictly governs the relationships among the

condominium unit owners and the condominium association.” First Equitable

Realty III, Ltd. v. Grandview Palace Condo. Ass’n, Inc., 329 So. 3d 167, 170

(Fla. 3d DCA 2021) (quoting Woodside Vill. Condo. Ass’n, Inc. v. Jahren,

806 So. 2d 452, 456 (Fla. 2002)).

We interpret the provisions of a declaration of condominium consistent

with general principles of contract interpretation. See McLlenan v. Cypress

Chase N. Condo. No. 4 Ass’n, Inc., 387 So. 3d 321, 325 (Fla. 4th DCA 2024).

So we do not read terms in isolation. “The words of a governing text are of

4 As the trial court’s denial here turned solely on the lack of a substantial likelihood of success, we constrain our analysis to that element. “A substantial likelihood of success on the merits is shown if good reasons for anticipating that result are demonstrated. It is not enough that a merely colorable claim is advanced.” City of Jacksonville v. Naegele Outdoor Advert. Co., 634 So. 2d 750, 753 (Fla. 1st DCA 1994).

7 paramount concern, and what they convey, in their context, is what the text

means.” Ham v. Portfolio Recovery Assocs., LLC, 308 So. 3d 942, 946 (Fla.

2020) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 56 (2012)); see also Conage v. United States,

346 So. 3d 594, 598–99 (Fla. 2022) (explaining that statutory interpretation

does not invite “a threshold determination of whether a term has a ‘plain’ or

‘clear’ meaning in isolation,” but requires consideration of “the statutory

context” with “the aid of whatever canons might shed light on the interpretive

issues in dispute”). We do not render any provision meaningless. Silver

Shells Corp. v. St. Maarten at Silver Shells Condo. Ass’n, Inc., 169 So. 3d

197, 203 (Fla. 1st DCA 2015). We do not read terms to create absurd results.

Famiglio v. Famiglio, 279 So. 3d 736, 740 (Fla. 2d DCA 2019).

The declaration of condominium at issue requires unanimity for any

amendments altering the “voting rights” of the unit owners:

[P]roposals, adoptions and approvals [of amendments] must be by not less than fifty-one (51%) percent of the members of the Association, except as to an amendment altering the percentages of ownership in the Common Elements or the voting rights of any of the Owners of the Condominium, any of which shall require the approval of one hundred (100%) percent of the Owners.

....

No amendment shall change any Condominium Unit nor the share of the Common Elements, Common Expenses or

8 Common Surplus attributable to any Unit, nor the voting rights appurtenant to any Unit, unless the record Owner or Owners thereof and all record owners of liens upon such Unit or Units shall join in the execution of such amendments.

The declaration also originally allowed termination of the condominium only

upon the “unanimous agreement of the Unit Owners and all institutional

mortgagees.” So the first issue concerns the interplay between the two

provisions. That is, under the amendment clause, could the Association

amend the unanimous agreement for termination provision by a simple

majority vote? Or does the amendment impact “voting rights” or “voting rights

appurtenant to any Unit,” requiring unanimous consent to amend? The

second issue is whether the declaration incorporates sufficient Kaufman

language such that the declaration was automatically amended by the

changed language of the Condominium Act, section 718.117(3), Florida

Statutes (2022), which allows termination of a condominium pursuant to a

plan of termination approved by at least 80% of the total voting interests of

the condominium. We address each in turn.5

IV.

A. Voting Rights

5 The trial court did not rely on the Kaufman language argument, as it found that the amendment of the unanimity requirement for termination to an 80% threshold did not impact voting rights. We review both issues de novo.

9 The Owners argue that the change to the termination vote threshold

materially altered unit owners’ voting rights. The unit owners were vested by

their declaration, their “constitution,” with a veto right, and the contractual

right to a unanimous vote threshold before they would be divested of their

condominium. The Association and Developer argue for a more constrained

interpretation of “voting rights.” Voting rights means the right to vote, so

because each unit owner can cast a vote, and that vote is counted, there is

no impairment of voting rights. But it is “voting rights,” not “right to vote.” And

context matters.

We don’t look at the terms “voting rights” and “voting rights appurtenant

to any Unit” in a vacuum. Instead, we examine the text “as a whole” including

“all the textual and structural clues that bear on the meaning of a disputed

text.” Conage, 346 So. 3d at 598 (quotations omitted); see also Ehrlich v.

Barbatsis Holding Co., 63 So. 2d 911, 913 (Fla. 1953) (“Courts should

attempt to give words and phrases used in contracts the natural meaning or

that meaning most commonly understood when considered in reference to

subject matter and circumstances. . . . Such meaning will depend on the

subject matter to which the words relate and the purpose of their use. The

intent of the quoted language may vary with the circumstances and such

words will not essentially convey the same connotations under all

10 circumstances.”). In examining the terms “voting rights” and “voting rights

appurtenant to any Unit” in the context of the section in which the terms

appear as well as in conjunction with the termination provision, we conclude

that the plain language demanded a unanimous vote to alter the voting

threshold. By requiring a unanimous vote for termination, the declaration

originally gave every unit owner an effective veto over any termination plan,

which would be lost if the amendments at issue here were enforced. See

Tropicana Condo. Ass’n, Inc. v. Tropical Condo., LLC, 208 So. 3d 755, 759

(Fla. 3d DCA 2016) (finding that non-unanimous amendments to declaration

reducing vote threshold for termination of condominium could not be applied

where declaration expressly required unanimous vote to amend termination

provision and the “amendment, if retroactively applied, would eviscerate the

Tropical owners’ contractually bestowed veto rights”).

The Association and Developer argue that the plain language of

Biscayne 21’s bylaws, incorporated by reference into the condo declaration,

mandate the narrow reading of voting rights as one vote for each unit owned,

and no more. But the provision referred to in the bylaws is not—and does

not purport to be—a definition:

2. Members.

11 3. Voting Rights. The members of the Association shall be entitled to cast one vote for each Condominium Unit owned by them.

This is because context matters. The provision is not contained in a definition

section. And the text doesn’t read as a definition in context. Rather than

defining voting rights, the text of this subsection spells out the unremarkable

principle that each member has the right to cast one vote for each unit

owned. Nothing more. It would be a stretch, unsupported by contextual clues

and the text of the subsection, to conclude that this sentence contained in

the members section was meant to define voting rights at all, much less as

one sole right (the right to vote) at the exclusion of other voting rights. Nor

would it be logically sound under applicable canons of construction or

principles of contractual interpretation. This general description of one vote

per unit owned in the bylaws, describing the mechanical tabulation of how

many votes a member gets (untethered to a definitional section) was meant

to abridge or limit express, specific provisions found in the declaration.

Against that backdrop, we find no inconsistency or ambiguity in the use

of the subtitle “voting rights.” As explained, we read the text as written and

read it in context. It does not purport to be a definition of voting rights. At

most, it details a voting right in the context of a member’s right to cast one

12 vote for each unit. As further explained in the context of contractual

interpretation:

Even if there were an inconsistency between the title of the clause and the terms thereof, “ ‘text wins’ in ‘a war between text and title[.]’ ” [Florida Fish & Wildlife Conservation Commission v.] Hahr, 326 So. 3d [1165], 1170 [(Fla. 1st DCA 2021)] (Jay, J., specially concurring) (quoting Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 293 (5th Cir. 2020) (citing Reading Law: The Interpretation of Legal Texts 222-23)); see also Hinely v. Fla. Motorcycle Training, Inc., 70 So. 3d 620, 624 (Fla. 1st DCA 2011) (“[T]he headings or subheadings of a document do not dictate the meaning of the entire agreement, especially where the literal language of the heading is contrary to the agreement’s overall scheme.”); Certain Underwriters at Lloyds of London v. Pero Fam. Farm Food Co., No. 20-12711, 2023 WL 2855844 at *6 (11th Cir. Apr. 10, 2023) (quoting Hinely, 70 So. 3d at 624).

Prop. Registration Champions, LLC v. Mulberry, 373 So. 3d 675, 681 (Fla.

5th DCA 2023). And since “text wins,” we conclude that the language of the

subsection does what it purports to do—establishes one vote per unit—but

doesn’t function as a definition of voting rights.

The plain language of the section of the declaration governing

amendment doesn’t support the constrained reading limiting voting rights to

the bare right to vote. Instead, the amendment section requires 100%

approval of an “amendment altering the percentages of ownership in the

Common Elements or the voting rights of any of the Owners of the

Condominium.” (emphasis added). The term “altering” doesn’t mean the

same thing as “eliminating.” The language does not contemplate simply a

13 binary situation of a right to vote or no right to vote, but “mak[ing] different

without changing into something else” or “becom[ing] different.”

Alter, Merriam-Webster Dictionary, https://www.merriam-

webster.com/dictionary/alter; see also State v. Carrier, 240 So. 3d 852, 857

(Fla. 2d DCA 2018) (setting forth the “ordinary meaning of the word ‘alter’”

as “‘to change or modify and to make different in some particular

characteristic without changing it into something else’” and examining the

word in context “[u]nder the doctrine of noscitur a sociis (a word is known by

the company it keeps” (citations and quotations omitted))). The Owners’

voting rights aren’t eliminated, and they haven’t changed “into something

else” by the change of the voting threshold, but surely they have been

changed, modified, or made different in some particular characteristic—they

no longer have the characteristic of a veto.6

We find further contextual support in examining the amendment

provision of the declaration in conjunction with the termination provision’s

requirement of “unanimous agreement of the Unit Owners and all institutional

mortgagees.” In context, the “unanimous agreement” means a unanimous

6 The same analysis would apply to the next paragraph of the amendment section, examining the requirement that “[n]o amendment shall change . . . the voting rights appurtenant to any Unit, unless the record Owner or Owners thereof . . . join in the execution of such amendments.” (emphasis added).

14 vote. It seems unlikely that a unit owner (or anyone else) reading those

provisions together would conclude that a change from a unanimous vote to

some other threshold wouldn’t constitute a modification, change, or an

alteration of a particular characteristic of a unit owner’s voting rights.

We need not leave the confines of Florida or our established principles

of contractual interpretation. But our conclusion is nonetheless supported by

consistency with numerous other state and federal cases that have

interpreted the concept of “voting rights” more broadly to encompass not only

the right of each voter to be able to cast a vote, but also to safeguard against

vote dilution or diminution. In the context of condominium law, California’s

Fourth District Court of Appeals has also interpreted “voting rights” to

encompass alterations to the relative voting power of a voting group as well

as outright denial of the right to cast a vote. See Lake Arrowhead Chalets

Timeshare Owners Ass’n. v. Lake Arrowhead Chalets Owners Ass’n., 59

Cal. Rptr. 2d 875, 877 (Cal. Ct. 4th App. 1996) (finding amendment to

condominium bylaws without unanimous approval unlawful under code

provision preventing amendments that would “[m]aterially and adversely

affect the rights, privileges, preferences, restrictions or conditions of that

class as to voting” without approval of entire affected class of members with

same voting rights).

15 In the federal voting rights context, the voting rights encompassed by

the Voting Rights Act of 1965 and the Fourteenth Amendment prohibit not

just infringement of the ability to cast a ballot, but also infringement of the

right to have such ballot be counted and impact the election, including by

dilution of relative voting power. See Reynolds v. Sims, 377 U.S. 533, 555

(1964) (“The right to vote can neither be denied outright, nor destroyed by

alteration of ballots, nor diluted by ballot-box stuffing. . . . [T]he right of

suffrage can be denied by a debasement or dilution of the weight of a

citizen’s vote just as effectively as by wholly prohibiting the free exercise of

the franchise.” (citations omitted)); Voinovich v. Quilter, 507 U.S. 146, 153–

54 (1993) (describing vote-dilution effect of racial gerrymandering). In the

context of shareholder rights, the Minnesota Supreme Court has held that

elimination of a minority corporate shareholder’s effective veto constituted a

deprivation of the shareholder’s “voting rights.” See Whetstone v. Hossfeld

Mfg. Co., 457 N.W.2d 380, 383–84 (Minn. 1990) (“The phrase ‘excludes or

limits the right of a shareholder to vote’ is somewhat ambiguous. It could

refer to the basic eligibility to vote (i.e., the difference between voting stock

and non-voting stock) or it could refer to the operative effect of the

shareholder’s right to vote. . . . Eliminating a minority shareholder’s veto

power over decisions of the majority shareholder, particularly in cases such

16 as this, unquestionably limits the voting rights of the minority shareholder.”

(footnote omitted)).

We therefore conclude that the trial court erred in determining that the

declaration permitted amendment of the voting threshold from unanimity to

an 80% vote share by a simple majority vote.

B. Kaufman Language

So the declaration required a unanimous vote to terminate or amend

the termination threshold. We next address whether the amendment to the

Condominium Act lowering the permissible threshold from unanimity for

termination to an 80% threshold automatically amends the declaration,

specific contractual language notwithstanding. To do this, we must examine

whether the declaration contains Kaufman language, that is, provisions that

automatically incorporate amendments of the Condominium Act into the

declaration. And if we do find such language, we must determine whether

the Kaufman language applies to the portions of the declaration at issue.

The 1974 version of the Condominium Act (the year in which the

declaration was adopted) allowed termination upon unanimous vote or “in

such other manner as may be prescribed in the declaration.” § 711.16(3),

Fla. Stat. (1974). Without repeating the language of the termination provision

(again), we note that the termination provision itself doesn’t expressly

17 reference the Condominium Act as amended. But the Association and the

Developer contend that the declaration incorporated all future amendments

to the Condominium Act passed since its adoption, and thus that the

Condominium Act, as most recently amended, controls over any conflicting,

express provisions in the declaration. But this argument misreads the

language of the declaration, misapplies this court’s decision in Kaufman, and

conflicts with longstanding principles of contract interpretation.

First, the contractual language the Association and Developer rely on,

contained in Article I, “Establishment of Condominium,” submitted to

condominium ownership under the Condominium Act, as amended. That’s

it. Prior to the 2022 amendments, there was no Kaufman language anywhere

in the declaration. Additionally, the provision in the declaration considered

by Kaufman contained a specific reference to amendment by the

Condominium Act, as amended from time to time:

The critical contested provision of the Declaration reads as follows:

1. Except where variances permitted by law appear in this Declaration or in the annexed By-Laws or in the annexed Charter of FIFTH MOORINGS CONDOMINIUM, INC., or in lawful amendments thereto, the provisions of the Condominium Act as presently existing, or as it may be amended from time to time, including the definitions therein contained, are adopted and included herein by express reference.

18 Kaufman, 347 So. 2d at 628 (emphasis added, quotations omitted). Against

that backdrop, Kaufman concluded that an amendment to the Condominium

Act which declared rent escalators as void against public policy should be

read into that declaration prospectively. Id. Here, the declaration contained

no Kaufman language. As this court previously held, “[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.” Tropicana Condo., 208 So. 3d at 758 (citing Cohn v. Grand

Condo. Ass’n, Inc., 62 So. 3d 1120, 1121–22 (Fla. 2011)). Because the

amendment to the Condominium Act impairs contractual obligations, the lack

of Kaufman language prohibits incorporation of such amended language into

the declaration.

Second, unlike Kaufman, the declaration at issue contains no “express

intention of all parties concerned that the provisions of the Condominium Act

[as amended] were to become a part of the controlling document . . .

whenever they were enacted.” 347 So. 2d at 628. The language at issue

here is not, as in Kaufman, an incorporation of the Condominium Act as

amended into the contested clause itself. Nor does the declaration expressly

provide as a general matter that any amendment to the Condominium Act

acts to amend express language to the contrary. The declaration of

19 condominium could have contained Kaufman language that explicitly and

automatically amended each clause when the relevant portion of the

Condominium Act was changed. It didn’t. Rather, the relevant clause is a

mere recital that the building is submitted “to condominium ownership,

pursuant to Chapter 711, Florida Statutes, the Condominium Act, as

amended . . . upon the terms, conditions, restrictions, reservations and

limitations contained herein.” (emphasis added).

Third, in Kaufman, the relevant amendment to the Condominium Act

rendered an existing provision of the declaration void as against public

policy. Here, the unanimous voting requirement in the termination section of

the declaration doesn’t offend public policy. The new law sets a lower floor

on the voting threshold (approval by “at least 80 percent of the total voting

interests of the condominium” and rejection by less than 5 percent “of the

total voting interests”). See § 718.117(3), (3)(a)2., Fla. Stat. But it contains

no expression of retroactivity. The relevant voting rights provision contains

an unambiguous expression of intent. The plain language of the declaration

controls, and the specific, unambiguous language of the termination clause

and the amendments clause controls over the general provision submitting

the building to condominium form of government. See, e.g., Pardes v.

Pardes, 335 So. 3d 1241, 1251 (Fla. 3d DCA 2021) (“It is apodictic that,

20 under contract law, the more specific contractual provision controls over the

general provision.” (citing Papunen v. Bay Nat’l Title Co., 271 So. 3d 1108,

1111 (Fla. 3d DCA 2019))).

C. Certification of Question of Great Public Importance

The Association and Developer seek certification to the Florida

Supreme Court of two questions of great public importance. See Fla. R. App.

P. 9.330(a)(2)(C). The definition of “voting rights” likely applies to many

condominium declarations and impacts condominium unit owners’ rights and

obligations. We therefore agree to certify a rephrased version of one of the

questions as being of great public importance:

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 OF CONDOMINIUM 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?

V.

The Association and Developer, as well as some of the amici, also

discuss the policy implications of this court’s decision. This court does not

21 assume the role of the legislature, nor can we overextend statutes beyond

their stated limitations, rewrite contracts, or impair contractual obligations

because of policy preferences.7 For the reasons explained, the Owners have

shown a substantial likelihood of success on the merits. We therefore

reverse and remand for entry of a temporary injunction.

Reversed and remanded; question certified.

7 There may be good policy reasons to allow a lower threshold for termination of condominium. There also may be good policy reasons to allow a unit owner to rely on the rights outlined in the declaration of condominium when the condominium was purchased. But we do not set policy. We instead apply the law and interpret the declaration as written. See, e.g., State v. Rife, 789 So. 2d 288, 292 (Fla. 2001) (“When faced with an unambiguous statute, the courts of this state are ‘without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.’ This principle is ‘not a rule of grammar; it reflects the constitutional obligation of the judiciary to respect the separate powers of the legislature.’” (citations omitted)); see also Art. II, § 3, Fla. Const. (setting forth separation of powers).