Your Custom Text Here
Attorney Fred O'Neal successfully
A homeowner at Clubhouse Estates
A homeowner at Windmill Pointe
Several principles of law apply to the question of the validity of an amendment to a declaration of covenants and restrictions (“C&R’s) is valid or not. The first principle is that C&R’s, when originally recorded, are considered mere unilateral instruments, capable of being modified or rescinded at will by the developer. However, once the developer sells a lot or unit subject the C&R’s, the C&R’s become a bilateral contract between and among the lot owners and the association. Providence Square Association, Inc. v. Biancardi, 507 So.2d 1366, 1370 (Fla. 1987) (“[D]eclarations … have both unilateral and bilateral elements. When a declaration … is initially filed for recording, it is unilateral in nature. Later, when … parcels are sold, each conveyance is made pursuant to and with reference to the declaration. Thus, to the extent that a declaration forms a part of the deed of conveyance and is based on the contractual agreement between the seller and the purchaser, it is a bilateral instrument …”). Accordingly, the association’s and the lot owners’ rights, powers and obligations under the C&R’s are interpreted under principles of contract law. Huck v. Kenmare Commons Homeowners’ Assoc., Inc., 382 So.3d. 759, 764 (Fla. 1st DCA 2023).
The second is that a contract is best described as an agreed upon allocation of benefits and burdens between the parties. See, e.g., Dept of Financial Services v. Freeman, 921 So.2d 598, 608 (Fla. 3d DCA 2020) (“… a voluntary exchange, with benefits and burdens flowing in each direction.”).
The third is that, in order for a document to be considered a legally enforceable contract, there must be “certainty” as to each of its essential elements. See, e.g., Smith v. Locklear, 906 So.2d 1273, 1274 (Fla. 5th DCA 2005) (“In order to create a contract, it is essential that there exist a reciprocal agreement to certain and definite terms.”). In part, that means that, if one party reserves to itself the absolute right to change the C&R’s, the element of “certainty” is destroyed and the C&R’s can no longer be considered an enforceable contract. Historically, developers tried to build in for themselves as much flexibility as possible regarding amending the C&R’s. This is for the practical reason that if a project is not selling as fast as the develop would like, he wants the ability to change the character of the development in order to sell faster. Originally, therefore, Florida courts held C&R’s to be unenforceable as a facially unlimited power to amend meant C&R’s lacked that element of certainty. See, Nelle v. Loch Haven Homeowners’ Association, Inc., 413 So.2d 28, 29 (Fla. 1982).
That is why, in order to preserve the enforceability of declarations, in Florida Ranch Estates, Inc. v. Sunshine Ranches Homeowners, Inc., 303 So.2d 665, 666 (Fla. 4th DCA 1976), the Fourth District Court of Appeal read into an otherwise unrestricted power to amend the C&R’s, the requirement that the power to amend must be used in “a reasonable manner as not to destroy the general scheme or plan of development.” Later Florida cases, then, fleshed out the meaning of the phrase “a reasonable manner as not to destroy the general scheme or plan of development.” In Flescher v. Oak Run Associates, Inc., 111 So.3d 929 (Fla. 5th DCA 2013), the court held that an amendment which changed the benefits and burdens originally established by the C&R’s ran afoul of the above “reasonable manner” limitation. (“The Restatement (Third) of Property recognizes the same limitation, but imposes an additional restriction that the developer may not materially change the burdens on the existing community members unless they are apprised of this possibility by the declaration. … Restatement (Third) of Property § 6.21 (2000). In Klinow v. Island Court at Boca West Property Owners' Ass'n, 64 So.3d 177, 180 (Fla. 4th DCA 2011), the Fourth District also held that an amendment to a declaration will be impermissible if it effectuates a “radical change of plans,” which was defined, in turn, as “a change which would create an inconsistent scheme, or a deviation in benefit from that of the grantee to that of the grantor.” Id. (citing Flamingo Ranch Estates, Inc. v. Sunshine Ranches Homeowners, Inc., 303 So.2d 665, 666 (Fla. 4th DCA 1974)). (Emphasis supplied). Flescher, supra, at 932-33.
This “benefit and burden” test for the validity of amendments to the C&R’s not agreed to by all the lot owners is consistent with the concept that a contract is an agreed upon allocation between the parties of benefits and burdens. Essentially, the test is that, so long as an amendment does not change the allocation of benefits and burdens set forth in the original C&R’s, Florida courts will consider an amendment not agreed to by all the lot owners to be “reasonable” and not violating the “certainty” that made the original C&R’s an enforceable contract. Conversely, when an amendment seeks to alter the benefits and burdens established by the original C&R’s, such an amendment will be considered as “destroying[ing] the general scheme or plan of development,” thereby violating the “certainty” requirement present in all contractual relationships. In short, amendments which seek to change the benefits and burdens under the original C&R’s will be held unreasonable and invalid.
Over my career, I’ve handled a number of cases where an HOA board decided to go after an elderly homeowner for fines or to enforce some minor rule (e.g. usually failure to maintain house or yard). Unfortunately, the way the Legislature set up the statutes governing HOA’s, no state agency oversees the actions of HOA’s, meaning there is no arm of the state to rein in abuses of elderly homeowners by HOA boards. Consequently, the only hope an elderly homeowner has against a hostile HOA board is to hire an attorney and try to defeat the HOA in court after years and years of expensive and stressful litigation.
Practically speaking, such a court battle between an HOA board and an elderly homeowner is not a fair fight. First, the elderly homeowner has to pay his or her own attorney out of savings or retirement. By comparison, the board of an HOA doesn’t spend its own money on attorney’s fees. It spends the community’s money.
Second, it is simply not healthy for most elderly clients I’ve represented to endure the cost and stress of years of litigation. Many have had heart and blood pressure issues, meaning they risk their very lives try to defend themselves in court. Consequently, I’ve had several clients quite rationally just give up (for health reasons), sell and move out of the neighborhood.
Third, management companies and HOA attorneys are very aware that, for health reasons alone, elderly homeowners have no business engaging in years of costly litigation. They know the average elderly homeowner will surrender and give the HOA and its attorneys whatever they are asking for.
The net result is that HOA’s, their attorneys and their management companies have effectively turned the “justice” system into the “injustice” system when it comes to elderly homeowners.
If the Legislature had any sense of compassion for the elderly, it would amend the statutes governing HOA’s in order to try to prevent (or, at least, lessen) the abuse elderly homeowners now suffer at the hands of some HOA boards.
Here are a couple of suggestions of what the Legislature can do:
One, amend Ch. 415 to require DCF (Department of Children and Families) to keep a public registry of all suits filed by ch. 718 "Condominium Associations" and ch. 720 "Homeowners Associations" against "elderly persons," (as defined in s. 825.101(4)), either to collect fines or for injunctive relief. The registry should be indexed against the name of the ch. 718 "Condominium Associations" and ch. 720 "Homeowners Associations" filing suit, as well as the names of the directors who voted for filing the suit. Providing this required information to DCF should be a statutory condition precedent to filling such a suit against an elderly person. (Note: this should help prevent HOA’s and condo associations from picking on elderly persons who are psychologically or health-wise unable to defend themselves against such a lawsuit. This will also help buyers evaluate whether they want to move into a community where numerous lawsuits have been filed against elderly persons.).
Two, amend Ch. 415 to require DCF to keep a public registry of all fines levied by ch. 718 "Condominium Associations" and ch. 720 "Homeowners Associations" against "elderly persons," (as defined in s. 825.101(4)). The registry should, again, be indexed against the name of the ch. 718 "Condominium Associations" and ch. 720 "Homeowners Associations" involved, as well as the directors voting for levying the fine. Providing this required information to DCF should be a statutory condition precedent to enforcing such a fine against an elderly person. (Note: I’ve run across situations where HOA’s run up bogus fines against elderly persons. Then, the HOA forecloses those fines when the elderly person dies or has to sell to move into an assisted living facility. It’s a scam. The directors are in on it, as well as the management companies. One of them picks up the property for a song at the foreclosure sale. Then, they turn around and re-sell the property and divide the profits from the re-sale. This change in the law will also help buyers evaluate whether they want to move into a community where numerous fines have been levied against elderly persons.).
Unconstitutional delegation of “judicial power” to a private entity - The fining portion of Florida’s Section 720.305 (in my opinion) constitutes an impermissible delegation by the Legislature to a private entity of the Courts’ Article V, Section 1 (“Courts”) “judicial power.” In pertinent part, Article V, Section 1 of Florida’s Constitution states: “SECTION 1. Courts.—The judicial power shall be vested in a supreme court, district courts of appeal, circuit courts and county courts. No other courts may be established by the state, any political subdivision or any municipality…” (Emphasis supplied).
As for what constitutes an exercise of “judicial power,” in Ortiz v. U.S., 138 S.Ct. 2165, 2185-86 (2018) (Thomas, concurring), the U.S. Supreme Court stated it was “the power to act conclusively against private rights,” accompanied by some basic procedural requirements, such as the presence of adverse parties and an opportunity to be heard. More recently, the First District Court of Appeal discussed “judicial power” in Shands Jacksonville Medical Center, Inc. v. Chavez, 416 So.3d 1226, 1228 (Fla. 1st DCA 2024) (Tannenbaum, concurring), as follows:
“The judicial power lies on the other side of the divide. This is the only sovereign power that can conclusively decide disputes over personal rights between private parties. That power extends to adjudicating facts the law specifies as necessary to decide such disputes, and then applying the law to those facts in order to render a judgment that permanently alters the parties’ legal relationship or that defines the rights and obligations between them. The judgment (subject to review by a superior court) is final and has the force of law as to those parties, making it subject to execution without further adjudication—its effects felt beyond the branch; indeed, throughout the State. The judicial branch’s nature as non-political allows it to serve a function vital to the preservation of liberty: the neutral, dispassionate interpretation and application of law in the conclusive determination of both private disputes between parties … This is the essence of judicial power, which may be exercised only by the judicial branch and cannot be delegated.” (Emphasis supplied).
This definition of “judicial power” is exactly what the Legislature (in my opinion) unconstitutionally delegated to private entities when they empowered homeowners association to impose “fines” on homeowners pursuant to Section 720.305(2).
Section 720.305 – In pertinent part, Section 720.305(2), Fla.Stat., states as follows: “(2) An association may levy reasonable fines. A fine may not exceed $100 per violation against any member or any member’s tenant, guest, or invitee for the failure of the owner of the parcel or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association unless otherwise provided in the governing documents.” Sub-section 720.305(2)(b) creates an internal appeals system by a group (appointed by the board) to determine “whether to confirm or reject the fine or suspension levied by the board.” There is no provision to appeal the fine to the court system, nor is there an automatic stay of enforcement of the fine should an appeal to the courts be taken.
Sub-section 720.305(3) authorizes the association to unilaterally suspend an owner’s right “to use common areas and facilities until the fee, fine, or other monetary obligation is paid in full, …” without court involvement. Sub-section 720.305(4) authorizes the association to unilaterally “suspend the voting rights of a parcel or member for the nonpayment of any fee, fine, or other monetary obligation due to the association that is more than 90 days delinquent…” without court involvement. Per Section 720.305, the association may also lien the owner’s property for an unpaid fine (provided it is in excess of $1,000), without court involvement. Per Section 720.3085(1) (“Payment for assessments; lien claims”), the priority of that lien relates back to the date the original declaration was recorded and, thereby, takes priority over homestead claims and encumbrances other than first mortgages (possibly triggering a mortgage default). Section 720.3085(8) also empowers the association to garnish tenants for unpaid fines, without court involvement. In short, once a fine is levied, the association has several remedies created by the Legislature to collect that fine, all of which are without court involvement. The only time for court involvement in collecting a fine is if the association wishes to obtain a money judgment.
Foley v. Osborne Court Condominium – In Foley v. Osborne Court Condominium, 724 A.2d 436 (R.I. 1999), an owner sued his condominium association, seeking to enjoin it from levying fines, recording liens against his property based on unpaid fines and foreclosing those liens. The homeowner asserted that the law enabling the association to do those things (1982 Condominium Act, G.I., chapter 36.1 of title 34 – “Rhode Island Condominium Act”) constituted an unconstitutional delegation of judicial power by the legislature to a private entity.
Section 1 of Article 10 (“Judicial Power”) of Rhode Island’s Constitution stated: “Section 1. Power vested in court.- The judicial power of this state shall be vested in one supreme court, and in such inferior courts as the general assembly may, from time to time, ordain and establish.”
In a section of its opinion entitled “2. Improper Delegation Claim,” the Rhode Island Supreme Court considered the constitutionality of the legislature’s delegation of fining power to a private entity under the Rhode Island Condominium Act. Foley, supra, 724 A.2d at 442. Because the trial court had failed to specifically rule on the constitutional issue, the Supreme Court remanded the case back to the trial court “with our instruction that the trial justice consider and rule on whether in this case the 1982 act represents an unconstitutional delegation of judicial or police power to the condominium association, a private entity.”
On remand, Foley v. Osborne Court Condominium, Superior Ct. of Rhode Island, Newport, 1999 R.I. Super. Lexis 50 (July 26, 1999), the trial court stated, “The pertinent provisions of the 1982 Act that allegedly violate Article 10 are those which empower condominium associations with the right to assess fines and use foreclosure proceedings to collect those fines,” citing Sections 34-36.1-3.02, 3.1.16, 1-3.20, 1-3.21, Rhode Island Statutes. The trial court concluded the statutes in question constituted an unconstitutional delegation of judicial power to a private entity, as follows: “The association is authorized to hear disputes concerning allegations that unit owners have violated the declaration, bylaws, or rules and regulations of the condominium. The 1982 Act permits the association to determine those controversies and to issue orders directing violators to pay fines. Finally, the act empowers the association with the ability to enforce its orders by depriving a violator of his property by foreclosure. In this capacity, the association acts as a tribunal exercising judicial power. … For the foregoing reasons, the Court finds that the 1982 Act represents an unconstitutional delegation of judicial or police power to the condominium association, a private entity.” (Id., at 14).
Like the above statutes in Rhode Island, Florida’s Sections 720.305 and 720.3085, discussed above, empower a private entity “to impose and enforce fines” through several remedies without court involvement. Like the statutes in Rhode Island, Florida’s Section 720.305 authorizes an association “to hear disputes that unit owners have violated the declaration …, to determine those controversies and to issue orders directing violators to pay fines.” In other words, Section 720.305 authorizes associations to exercise what are traditional “judicial powers” only courts have.
Just as the statutes in Rhode Island constitute an unconstitutional delegation of judicial power to a private entity, so also Florida’s Section 720.305 constitutes an unconstitutional delegation of traditional judicial power to a private entity. Put another way, the Florida Legislature’s creation of a process by which a private homeowners’ association is empowered to adjudicate, levy, then enforce fines WITHOUT COURT INVOLVEMENT constitutes an unconstitutional delegation of the courts’ traditional “judicial power” to a private entity.
Unlike traditional courts, Florida’s Section 720.305(2) creates a very, very false façade of pseudo-due process. The statute grants the board of directors of the homeowners’ association, for example, the unilateral power to appoint and/or remove the members of the committee responsible for reviewing its actions. It gives the association (the very party who pockets fines it levies) the power to adjudicate the fines and, then, to appoint the persons who will review its actions – violating a basic tenet of due process that the adjudicator be disinterested in the outcome of the dispute before it.
Additionally, a declaration of covenants and restrictions is considered a contract. See, Huck v. Kenmare Commons Homeowners’ Association, Inc., 382 So.3d 759, 764 (Fla. 1st DCA 2023). Consider any other type of contract relationship (e.g. credit card agreement, rental car agreement, internet provider contract, note and mortgage, marital settlement agreement). Hypothetically, if the Legislature were to grant one party to ANY other type of a contract the power to adjudicate, levy, then enforce fines against the other party WITHOUT COURT INVOLVEMENT, there would be no question the Legislature went too far. The same logic applies here to homeowners associations. Hence, Florida’s Section 720.305(2) is clearly (in my opinion) an improper delegation by the Legislature of the courts’ judicial power to a private entity.
4. Injunctions – HOA “self help” remedy as adequate remedy at law (posted 6/14/2026) -
Ofttimes, HOA attorneys will strongly encourage their HOA clients to file lawsuits to compel owner compliance with the C&R’s. Afterall, that’s how HOA attorneys make the majority of their money (no lawsuit = no fees). Ofttimes, the attorney uses the rationale that “if we let just one person get away with violating the C&R’s, then we’re leaving ourselves open to the accusation of selective enforcement.” The remedy the attorney uniformly seeks is to ask for a mandatory injunction from the court, ordering the owner to comply with the particular provision involved. However, in order to get such an injunction, the attorney generally must plead and prove the HOA lacks “an adequate remedy at law.”
Uniformly, C&R’s are written to maximize the developer’s powers (and, by extension, the HOA’s powers, as successor to the developer). This often results in the C&R’s containing a provision entitling the developer (and the HOA) to use “self help” to remedy violations.
In 2022, the Second District held in Mauriello v. Property Owners Ass’s of Lake Parker Estates, 337 So.3d 484 (Fla. 2d DCA 2022), that the trial court erred in determining that an association was entitled to prevailing party attorney’s fees in its injunction action. The court held that the C&R’s in Mauriello provided the HOA with an “adequate remedy at law” by giving the HOA the option of remedying the violation itself (lack of lawn maintenance) and, then, assessing the owner its costs. Id., at 487.
In 2023, the Sixth District similarly held in McConico v. Morgan’s Mill Property Owners Association, Inc., 387 So.3d 368 (Fla. 6th DCA 2023), that the existence of such a “self help” remedy in the C&R’s negated the HOA’s ability to obtain a mandatory injunction.
In McConico, the HOA similarly sued an owner for a mandatory injunction to compel compliance with the C&R’s. The particular provision in the C&R’s involved required the homeowner to maintain the exterior of her residence and lot in a neat and attractive condition. Section 5.6 of the C&R’s in McConico stated that the association “may, at its option … perform such reasonable maintenance and make such repairs as may be required and deemed necessary to restore the neat and attractive appearance of the Lot …”
The owner in McConico moved to dismiss the HOA’s injunction complaint on the ground that Section 5.6 provided the association with “an adequate remedy at law because it can perform the work necessary to cure the violation.” The trial court denied the motion and entered judgment in favor of the HOA, ordering the owner to clean, maintain, and repair various aspects of her property.
On appeal, the Sixth District reversed. In its opinion, the Sixth District agreed with the owner that Section 5.6 provided the HOA with an adequate “self-help” remedy at law. The Court went further to say that it was premature and speculative to assume that, if the HOA were to try to exercise its self- help remedy, the owner would physically obstruct them. Hence, under the facts as they then stood, the Sixth District concluded that mandatory injunctive relief was neither proper nor needed.
Two years later in Mooney v. Color Le Palais of Boynton Beach Homeowners Association, Inc., 419 So.3d 1078 (Fla. 4th DCA 2025), the Fourth District reached a contrary conclusion. It held that “self help” is not adequate enough a remedy to prevent issuance of a mandatory injunction. In Mooney, the particular C&R provision involved required that “[a]ll lawns shall be maintained free from unsightly bald spots or dead grass and uniform in texture and appearance with surrounding lawns in the Community.” The “self help” remedy available to the HOA stated:
““If a failure to comply with the provisions of this Section 2 relates to the Owner’s obligation to maintain the Dwelling Unit, lawn and landscaping, then, in addition to the exercise of all other remedies, the Association shall have the right to secure those services necessary to correct such failure to comply and to impose the cost of such corrective action upon the noncomplying Unit Owner[.]”
The court in Mooney, while acknowledging conflict with Mauriello and McConico, nevertheless, interpreted the language in Section 720.305(1) as authorizing an HOA to bring “[a]ctions at law or in equity, or both, to redress alleged failure or refusal to comply with” the provisions of chapter 720, the governing documents, and the rules of the association” as doing away with the need for an HOA to plead and prove it had no adequate remedy at law.
The Florida Supreme Court has accepted jurisdiction to resolve the conflict (Case No. SC 2025-1513). The case is pending with oral argument to be set.
If I were to guess how the Supreme Court will rule, my guess would be that they will side with Mauriello and McConico, if for no other reason than the courts have bigger fish to fry than wasting time and energy over “lawn maintenance” issues.
5. RECOVERING BACK FINES AND ASSESSMENTS (posted 5/13/26)
In Avatar Properties, Inc. v. Norman Gundel, et al., 372 So.3d 715, 723-24 (Fla. 6th DCA 2023); rev. denied, 2023 WL 722082 (Fla. 2023), a homeowner sued a developer to recover back dues paid for use of a recreation facility on the grounds the dues were illegal. The developer raised the “voluntary payment” defense. Generally, the defense of “voluntary payment” applies where someone makes a payment not under some kind of duress or compulsion. In such a case, the payment cannot be recovered. However, where the homeowner is subject to mandatory dues, which, if not paid, could become a lien against his property and could be foreclosed, the court said the homeowner’s payment is not considered “voluntary” as it is considered to have been made under duress or compulsion.
Therefore, if your property is similarly subject to covenants and restrictions which allow the homeowners’ association to lien your property and foreclose that lien, the best course of action is to pay what the homeowners’ association is demanding. Then, turn around and sue to recover those monies back.
This is especially true when selling your property and the association responds to a title company or closing agent’s request for an estoppel letter by claiming you owe fines or unpaid assessments. If those fines and assessments could be the subject of a lien against your property (and therefore a title defect), the best course of action is to pay them out of the sales proceeds, then turn around and sue to recover that money back.
As an aside, you may wonder why not just bond off the association’s claim and close the sale that way. Unfortunately, unlike many other types of liens, the Legislature did not to include a provision allowing homeowners to bond off liens filed by their homeowners’ association.
6. Selective Enforcement – avoiding having it raised as a defense (posted 6/14/2026) -
Ofttimes, HOA attorneys encourage their HOA clients to file lawsuits to compel owner compliance with the C&R’s. Afterall, that’s how HOA attorneys make the majority of their money (no lawsuit = no fees). Ofttimes, the attorney uses the rationale that “if we let just one person getting away with violating the C&R’s, then we’re leaving ourselves open to the accusation of selective enforcement.” Because following an attorney’s advice is a complete defense to any personal liability, the director would almost be a fool not to follow the HOA attorney’s advice. See, “617.0830 General standards for directors.— (2) In discharging his or her duties, a director may rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by: … (b) Legal counsel … as to matters the director reasonably believes are within the persons’ professional or expert competence; …”
While it may be well and good for the individual director to just go along with the attorney’s suggestion, filing suit could (and often has) end up being a disaster for the community as a whole in terms of cost and neighborhood division and hard feelings.
As an alternative to just blindly following the attorney’s advice, I suggest HOA directors look at the last sentence in Section 720.311(2)(d), which states: “Settlement agreements resulting from mediation shall not have precedential value in proceedings involving parties other than those participating in the mediation to support either a claim or defense in other disputes.”
What this sentence means is that, if the HOA is able to mediate its dispute with the owner, and, if part of the resolution involves a relaxation of strict compliance with the C&R’s, that resolution cannot later be thrown up in the face of the HOA in the form of an assertion that the HOA is selectively enforcing its C&R’s.
Just a suggestion.
7. Short Term Rentals – Constitutionality of s. 720.306(1)(h)(2) – (posted 6/13/26)
In 2021, the Legislature created Section 720.306(1)(h)(2), Fla.Stat., effective July 1, 2021 (see, ch. 2021-99, §§ 22, 27). Section 720.306(1)(h)(2) empowers HOA’s ability to restrict short-term rentals. It empowers not only an HOA’s ability to restrict short-term rentals prospectively (for those owners who acquire title after s. 720.306(1)(h)(2) was enacted), but also retroactively (those owners who already owned property and been renting it out on a short-term basis). See, e.g., Brown & Brown, Inc. v. Gelsomino, 262 So.3d 755, 757 (Fla. 4th DCA 2018) (“A statute operates retroactively when it ‘attaches new legal consequences to events completed before its enactment.”).
Sections 720.306(1)(h)(1) and (2), in pertinent part, state:
“(h)1. Except as otherwise provided in this paragraph, any governing document, or amendment to a governing document, that is enacted after July 1, 2021, and that prohibits or regulates rental agreements applies only to a parcel owner who acquires title to the parcel after the effective date of the governing document or amendment, or to a parcel owner who consents, individually or through a representative, to the governing document or amendment.
“2. Notwithstanding subparagraph 1., an association may amend its governing documents to prohibit or regulate rental agreements for a term of less than 6 months and may prohibit the rental of a parcel for more than three times in a calendar year, and such amendments shall apply to all parcel owners.” (Emphasis supplied).
The constitutionality of the retroactive nature of Section 720.306(1)(h)(2) is doubtful, given Article I, Section 10 of Florida’s Constitution, which states: “SECTION 10. Prohibited laws.—No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed.” (Emphasis supplied).
As stated above, a declaration of covenants and restrictions (“C&R’s) is a contract. See, Huck v Kenmare Commons Homeowners Association, Inc., 382 So.3d 757, 764 (Fla. 1st DCA 2023). Therefore, the right an owner has to rent out his property on a short-term basis is a contract right, which under Article I, Section 10, the Legislature should not impair.
In F.I.G.A. v. Devon Neighborhood Ass’n, Inc., 67 So.3d 187, 194 (Fla. 2011), the Florida Supreme Court stated that, “…[I]f a statute is retroactive, two factors are to be considered. The first factor is whether the statute itself expresses an intent that it apply retroactively, and if so, the second factor is whether retroactive application is constitutional.” (Citations omitted).
If retroactive operation of a statute will “impair or destroy verted rights,” Id., then the statute should not be given retroactive operation. Again, if one owned property which could be used for short-term rentals prior to Section 720.306(1)(h)(2)’s enactment, the right to right to do so thereafter was “vested.” Hence, (in my opinion) applying Section 720.306(1)(h)(2) to such property would be unconstitutional.
