Editorial: A Relief For Florida Commercial Condos

by Bilzin Sumberg

Law360 - May 13, 2014

Most provisions in the Florida Condominium Act (Chapter 718 of Florida Statutes) apply equally to residential and commercial condominiums. But anyone attempting to draft operating procedures for commercial condominiums can be stymied by the procedures for meetings, elections, service on the board of directors and dispute resolution currently existing in the act.

The inclusion of such provisions in the statute arose from abuses in residential condominiums that had occurred when individuals, with no knowledge of the law and a particular personal bent, ran residential condominiums as their personal fiefdoms.

In the commercial arena, there was little or no evidence of abuses, but drafters of commercial condominium documents were faced with limitations on the manner in which the board of directors could be elected, term limitations on the board, certification of familiarity with the act and other provisions dictating how the condominium would operate. Many of these provisions were difficult to apply in a commercial venture and frequently openly ignored.

The Real Property, Probate and Trust Law Section of The Florida Bar sponsored a bill introduced in the 2014 session that, with some tinkering, passed the Legislature as SB 440. As of the date of this writing, it has not been signed by Gov. Rick Scott but, based on the absence of any currently expressed objections (it passed the Florida House 116-0 and the Senate 40-0), signature by the governor is expected.

This bill operates by either limiting certain existing provisions of the act to residential condominiums or by carving out from a number of provisions of the act an exception for "nonresidential condominiums." The term "nonresidential condominium," unfortunately, is nowhere defined in the statute; it was left on the cutting room floor in the passage process. However, the definition of "residential condominium" is very extensive, excluding condominiums primarily commercial or industrial. We can assume therefore that if the project does not qualify as a residential condominium, it can be characterized as a "nonresidential condominium" by default.

The passage of this bill could encourage developers to utilize commercial condominiums more and therefore spur more development in the commercial area. It may also serve to increase financing for commercial development if developers can raise some of the cost of their commercial projects with presale deposits as is currently being done with residential condos.

Discussed below are some of the more significant provisions of SB 440.

Proxies. The act does not permit general or limited proxies to be used in voting for the board of directors. SB 440 now permits them to be utilized in voting for the board in a nonresidential condominium. In addition, in other voting action by unit owners, regarding waiving or reducing reserves, waiving financial reporting requirements or amending the declaration or the articles or bylaws of the condominium association, general proxies can be used by unit owners in a nonresidential condominium. Under existing law, unit owners could only express their vote on these other matters by a voting ballot or by a limited proxy.

Election of Directors. The existing limitation on directors to a one- or two-year term (depending on the bylaws) has been lifted for nonresidential condominiums. Directors in such condominiums may serve for an unlimited number of terms or years.

In addition, if there is more than a single owner of a unit, all owners can serve simultaneously on the board of directors in a nonresidential condominium. Prohibitions on multiple owners of a single unit serving concurrently remain in residential condominiums.

Furthermore, the limitation on the manner of election, only by ballot or voting machine, no longer applies in a nonresidential condominium. Finally, the "loyalty oath" required for any board member, a certification that the member is familiar with the condominium documents and will uphold the documents and discharge his or her duty as a fiduciary, is omitted for directors in a nonresidential condominium.

Arbitration/Mediation. The act contains a provision requiring arbitration or mediation for disputes. The arbitration or mediation is handled by the state agency overseeing only residential condominiums, the Division of Florida Condominiums, Timeshares and Mobile Homes. However, no distinction was made between residential and nonresidential condominiums in such alternate dispute resolution provisions.

Therefore, a dispute in a nonresidential condominium would have to be arbitrated or mediated before the division, but the division had no jurisdiction to conduct such arbitration or mediation. This Catch-22 has been remedied by reason of exclusion of nonresidential condominiums from the arbitration and mediation requirements.

Hurricane Protection. The Condominium Act has elaborate provisions relating to the installation of hurricane shutters, impact glass or other hurricane protection. While this may make sense in a residential development, it makes little sense in a shopping center; nonresidential condominiums are now excluded from the operation of these provisions.

Phased Development. Many projects are built in phases. The act provides protection for owners purchasing in early phases by requiring that future phases must adhere to certain limitations on the manner of development. These limitations prevent a developer from being able to change the character of the development by building a different product in future phases.

While this generally worked well for residential development, it put a straitjacket on commercial projects, which may contain different types of uses in different phases. Almost all of the phased restrictions have been lifted for nonresidential condominiums in SB 440.

Distressed Condominium Relief Act. While almost all of SB 440 deals with nonresidential condominiums, this bill also carried an extension of the Distressed Condominium Relief Act for one year or to 2016. The Relief Act, adopted as Part VII to the Condominium Act, was enacted in 2010 as a way to promote the absorption of a substantial unsold condominium inventory arising from the downturn in the real estate market starting in 2008.

Originally enacted for a two-year term, Part VII was previously extended for three years to 2015. It was generally credited with assisting in the absorption of a substantial amount of the unsold inventory. While inventory in South Florida has generally been absorbed, the absorption rate in other areas has been slower and this latest extension is a welcome addition to this bill.

This article is reprinted with permission from Law360.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bilzin Sumberg | Attorney Advertising

Written by:

Bilzin Sumberg

Bilzin Sumberg on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.