Statutory Limitation Period to object to amendments to governing docs in a Condo or HOA

Many owners/board members, and even CAMs assume that amendments that did not receive the requisite amount of membership consent are automatically invalidated by the courts. This is only true, however, if the issue is brought to the courts in a timely fashion and with the requisite limitation period. 

In many cases, waiting around and failing to take action may convert what should be an invalid amendment into an enforceable obligation due to the application of the statute of limitations.

Statute of Limitations sets forth the maximum time frame to file a legal action making a claim or to enforce a party’s rights, depending upon the type of claim being made. After that statutorily-indicated time period runs, any claim asserting that cause of action will likely fail, regardless of whether the person or entity bringing the case is “right” or wrong”.
In Florida, the most often cited Statute of Limitations is found in Section 95.11, F.S., which contains the time limits for the following common types of cases, I have included the pertinent section below regarding amendments to governing documents:FIVE YEARS: An action on a judgment or court decree; an action on a written contract; an action to foreclose a mortgage and other actions founded on written instruments.

Section 718.112(1)(b) of the Act states that amendments to the articles of incorporation or bylaws are not valid unless recorded in the public records of the county where the declaration of condominium is recorded. Further, Chapter 617, the Florida Not For Profit Corporation Act, provides that amendments to the articles of incorporation must be filed in the office of the Department of State.

Legal Summary/Case Law:
Florida appeals courts have clarified the deadline for challenging an association’s governing documents. The court rulings establish that any challenge to the governing documents must be brought within five years of their recording or, in certain situations, five years from the date in which the challenger takes title to the property if subsequent to the recording.Florida’s First District Court of Appeal brought clarification to this issue in February 2016. A husband and wife had sued their HOA in July 2013 challenging the validity of amendments to the HOA’s restrictive covenants that were passed in 2001 and 2005. The trial court ruled the amendments were not properly voted on and invalidated both.Subsequently, another homeowner entered the case and appealed to the First DCA, claiming that the lawsuit was filed long after the five-year time limit on both amendments had expired.The appeals court found that the time limitation had in fact expired. Its rationale was founded in part on a section of Florida statutes which provides that “legal or equitable action on a contract, obligation or liability founded on a written instrument … shall be commenced within five years.” The decision was also based on one of its opinions issued in 2015 regarding the statute of limitations and on a 2014 ruling by the Fourth District Court of Appeal.In the case resulting in the 2015 opinion, a developer had recorded an amendment to the restrictive covenants in December 2000. In March 2009, the HOA challenged the validity of the amendment. The court held the association had failed to act within the five-year time limit. It said that whether one is a condominium association governed by Florida Statutes Chapter 718 or a homeowner association governed by Florida Statutes Chapter 720 is determined by the association’s governing documents, including declarations, bylaws and articles of incorporation including any amendments. Once a governing document or amendment is recorded, the clock starts to run on a challenger’s ability to contest the validity of its controlling instrument.