In Avila v. Biscayne 21 Condominium, Inc., Case No. 3D23-1616, Florida's Third District Court of Appeal handed nine holdout unit owners a decisive win against a developer that had acquired 183 of the building's 192 units and tried to amend the termination threshold from 100 percent unanimous down to 80 percent. The Florida Supreme Court declined to review the case on October 14, 2025, leaving the Third District's ruling intact as binding precedent across Miami-Dade and Monroe Counties. Read the opinion at justia.com. If you own a unit in an older Florida condo and have noticed an investment group quietly accumulating units in your building, this case — and the district split it has produced — is the single most important piece of Florida case law you need to understand.
Older waterfront Florida condos are now in the crosshairs of redevelopment activity that the post-Surfside structural-integrity framework has inadvertently accelerated. Bisnow reported in October 2025 that broker Dan Marinberg's Condobuyout.com had ten active Miami-Dade buyout deals in progress simultaneously. WLRN documented Florida's roughly 1.6 million condos, of which approximately 90 percent are 30 or more years old — the exact target population for the SIRS-and-milestone-inspection cost spiral that drives owners toward developer exits. For broader context, pair this with our Florida Fannie Mae blacklist guide, our SIRS reserve funding guide, and our milestone inspection guide.
This article is general information for Florida condo unit owners and board members. It is not legal advice. The legal landscape is shifting rapidly. Talk to a licensed Florida community-association attorney before relying on any specific provision or strategy.
Why developers are circling older Florida condos
Three forces converge to make older Florida condo buildings — particularly waterfront towers in Miami-Dade, Broward, and the Sarasota-Naples coast — unusually attractive acquisition targets right now.
First, the post-Surfside cost spiral. After Champlain Towers South collapsed in June 2021, killing 98 people, Florida enacted SB 4-D in 2022 and SB 154 in 2023 requiring milestone inspections and Structural Integrity Reserve Studies for buildings three or more habitable stories tall. Reserve funding deadlines and the SIRS reports themselves have produced six-figure special-assessment letters across Florida: WLRN reported that Cricket Club in North Miami issued assessments around $134,000 per unit and Mediterranean Village in Aventura imposed assessments up to $400,000 per unit. Owners who cannot pay become motivated sellers.
Second, the land-value math. Waterfront Miami land approved for new luxury construction is worth dramatically more than the existing aging structure. The Edition Residences, the Marriott-branded luxury tower Two Roads Development planned to build at Biscayne 21's address, would have generated returns that justified a $150 million acquisition for the existing 192 units. Across South Florida, similar redevelopment economics drive the buyout playbook.
Third, the Fannie Mae blacklist effect. Buildings flagged ineligible for conventional financing — because of insufficient reserves, deferred maintenance, master-policy gaps, or single-entity ownership concentration — sell only to cash buyers. Cash buyers tend to be developers and institutional investors. The post-2024 expansion of the blacklist has effectively narrowed the buyer pool for older Florida condos to the exact entities most interested in acquiring entire buildings.
Greenberg Traurig attorney David B. Weinstein, quoted in Florida Trend's April 2026 "Two Roads Diverged" feature, summarized the dynamic: investors are doing the math on aging buildings whose costs have outrun their cash flow, and the math often points toward acquisition rather than rehabilitation.
The Biscayne 21 case in plain English
Biscayne 21 is a 13-story, 192-unit waterfront condominium at 2121 N. Bayshore Drive in Miami's Edgewater neighborhood. It was built in 1964. The original 1965 declaration required 100 percent unanimous consent for termination of the condominium — a common provision in older Florida declarations.
In 2022, TRD Biscayne LLC, an affiliate of Two Roads Development, took on $150 million in financing and acquired 183 of the 192 units (95.3 percent), planning to demolish the building and replace it with the Edition Residences, a Marriott-branded luxury tower. The Real Deal documented the acquisition timeline.
In August 2022, the Two Roads-controlled association board amended the declaration to lower the termination threshold from 100 percent to 80 percent — the threshold currently allowed under F.S. 718.117(3). The amendment also added "Kaufman language" purporting to incorporate the Florida Condominium Act as amended from time to time. The nine remaining unit owners sued.
The trial court initially denied the holdouts' request for a preliminary injunction. The Third District Court of Appeal reversed in Avila v. Biscayne 21 Condominium, Inc., Case No. 3D23-1616 (Fla. 3d DCA Mar. 13, 2024), with a revised opinion on rehearing reported at 50 Fla. L. Weekly D1509 (Fla. 3d DCA July 10, 2025). The Florida Supreme Court denied review on October 14, 2025 (Case No. SC2025-1169) and denied a subsequent rehearing petition later that month, leaving the Third District ruling intact as binding precedent.
The Third District's reasoning, as Haber Law's Jonathan Goldstein and Christina Warhola explained: the original 100 percent unanimous-consent requirement gave each owner an effective veto over termination — a contractual right that the developer-controlled board could not unilaterally amend away to a lower threshold without violating the impairment-of-contract doctrine. Absent Kaufman language in the original declaration, generic post-recordation statutory references could not retroactively impair that contractual obligation. Bilzin Sumberg attorneys Joseph Hernandez, Kenneth Duvall, and Kevin Koushel covered the Florida Supreme Court denial in detail.
On January 14, 2026, a Miami-Dade trial court ordered Two Roads to restore the Biscayne 21 building — an estimated $61 million in repairs — after the developer had stripped windows, flooring, plumbing, and HVAC during pre-demolition activities. The Real Deal reported the order. Owner-side counsel Glen H. Waldman of Armstrong Teasdale summarized the holdouts' position: "You broke it, you fix it." Two Roads filed a new lawsuit in late January 2026 seeking equitable termination on an "economic waste" theory, arguing the building is now uninhabitable and should be terminated rather than restored. The case continues.
The Third / Fourth DCA split — which county matters
This is the part of the story most coverage misses, and it is the single most actionable insight for a Florida condo owner trying to assess their building's exposure.
One year before Biscayne 21, Florida's Fourth District Court of Appeal reached the opposite result on near-identical facts. In Fellman v. Mission Viejo Condominium Association, Inc., Case No. 4D22-1260 (Fla. 4th DCA Apr. 6, 2023), the bulk owner held 175 of 176 units in a building whose 1980 declaration required 100 percent termination consent. The board amended to 80 percent in February 2021. The Fourth DCA affirmed termination. Read the opinion at justia.com. Kaye Bender Rembaum partner Jeff Rembaum's analysis walks through the doctrinal differences between Fellman and the emerging Biscayne 21 reasoning.
The Florida Supreme Court could have resolved this district split by accepting jurisdiction in Biscayne 21. It declined. The practical consequence is that which Florida DCA your building sits in materially affects your legal posture:
- Third DCA (Miami-Dade, Monroe Counties): Under Avila v. Biscayne 21, an original unanimous-consent requirement is treated as a contractual right that protects minority owners against unilateral threshold amendments. Owner-favorable
- Fourth DCA (Broward, Palm Beach, Indian River, Martin, Okeechobee, St. Lucie Counties): Under Fellman v. Mission Viejo, the same fact pattern was held to permit termination. Developer-favorable
- First, Second, Fifth, and Sixth DCAs: No controlling appellate decision on the precise issue. Trial courts in those circuits have to choose which line of authority to follow until their DCA rules
If your building is in Miami-Dade or Monroe County, the Third District's ruling is binding on the trial court. If your building is in Broward or Palm Beach, the Fourth District's contrary ruling is. If you live in any other Florida county, the law is unsettled and the outcome depends on which DCA your circuit reports to and which line of cases the trial judge finds more persuasive.
The 5 percent rule that actually wins
Most coverage of condo termination focuses on the 80 percent approval threshold. The more actionable number for minority owners is 5 percent. F.S. 718.117(3) provides that a Plan of Termination cannot proceed if 5 percent or more of total voting interests reject the plan by negative vote or written objection. Equally important: if rejected on this basis, the plan cannot be resubmitted for 24 months.
The math is straightforward and dramatically different from the math people imagine.
Organizing 5 percent is dramatically easier than winning a contested 80 percent vote. The 5 percent threshold was lowered from 10 percent by SB 1520 in 2017 — making termination easier than the historical baseline — but the floor remains a meaningful defensive tool. Florida community-association attorneys consistently recommend identifying the 5 percent core and organizing them as the first defensive step when an attempted termination becomes visible.
The Kaufman-language audit you can do today
Before you call an attorney, before you call your neighbors, before you do anything else, you can answer the most important question about your building's vulnerability in five minutes. Pull your declaration from your county clerk's recorder website and search it for one phrase.
"Kaufman language" is a clause stating that the Florida Condominium Act applies to your building as amended from time to time, rather than as it existed when the declaration was recorded. The term traces to Kaufman v. Shere, 347 So.2d 627 (Fla. 3d DCA 1977). The clause typically reads something like: "The provisions of Chapter 718, Florida Statutes, as amended from time to time, shall apply to this Condominium" or similar.
If your declaration does contain Kaufman language, statutory amendments lowering termination thresholds (from 100 percent to today's 80 percent) generally apply to your building automatically. If your declaration does not contain Kaufman language — or if it contains language explicitly freezing the statute at the date of recording — the threshold in effect when the declaration was recorded is more likely to bind. This is the doctrinal hinge of Avila v. Biscayne 21: the absence of Kaufman language in the original declaration is what made the 100 percent unanimous-consent requirement a binding contractual right that survived later statutory amendments.
Pulling your declaration: most Florida county recorders post recorded condominium declarations on their public websites at no cost. In Miami-Dade, search the Miami-Dade Clerk's official records search by the association's name or recording reference. Other Florida counties have similar tools.
HB 913 and the economic-waste pathway
HB 913, signed by Governor DeSantis on June 23, 2025 and effective July 1, 2025, clarified the statutory definition of economic waste as a basis for termination and modified the bulk-owner termination pathway. Where a bulk owner holds 50 percent or more of voting interests, an economic-waste termination requires approval by 80 percent of all voting interests. Bryan Law's Shareen Agharaad has analyzed the interaction between HB 913 and the Biscayne 21 ruling.
Two Roads Development invoked the economic-waste pathway in its January 2026 follow-up lawsuit against the Biscayne 21 holdouts — arguing that because Two Roads itself had stripped the building during pre-demolition activities, restoration was now economic waste and the building should be terminated rather than rebuilt. The Miami-Dade trial court's January 14, 2026 order requiring restoration ($61 million) blunted that argument by re-establishing the building's habitability as a baseline. Siegfried Rivera attorney Lindsey Thurswell Lehr's March 2026 analysis covers the current state of play.
The economic-waste pathway is the next battleground for Florida condo developer takeovers. Owners watching their building face an aging-infrastructure narrative should pay close attention to how courts apply the new economic-waste definition over the next 12 to 24 months. The structural risk is that any developer with majority ownership could argue that needed repairs are uneconomic relative to redevelopment value, even where the building is in fact restorable.
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- Keep yourself compliant on every statute change
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Owner playbook
Six steps for Florida condo owners watching investor accumulation in their building.
- 1. Read your declaration first. Pull it from your county clerk's website. Search for "Kaufman language" or any phrase referencing "as amended" alongside the Condominium Act. Identify the original termination threshold. The answer is your starting position
- 2. Monitor unit-ownership patterns. County property-tax records show owner names. Track how many units are held in single-purpose LLCs, especially LLCs with related agent addresses. Sudden bulk acquisitions are often visible months before any termination plan is announced
- 3. Identify and organize the 5 percent core. Map the units that are most likely to oppose termination — long-term residents, homestead owners, owners with sentimental ties or income streams from the unit. You need only 5 percent of voting interests to block under F.S. 718.117(3)
- 4. Retain joint counsel through an ad-hoc minority committee. Cost-share legal fees across the holdout group. Florida community-association attorneys at firms like Armstrong Teasdale, Haber Law, Bilzin Sumberg, Becker, Kaye Bender Rembaum, and Siegfried Rivera have direct experience with the post-Biscayne 21 landscape
- 5. Demand transparent disclosures from the board. If the developer holds majority, the board controls information. Request all amendment proposals, meeting minutes, financial statements, engineering reports, and any communications with redevelopment partners. Florida's records-access provisions require production within statutory timeframes
- 6. Document the building's restorable condition. If the developer is positioning for an economic-waste argument under HB 913, the most powerful defensive evidence is independent engineering reports showing the building can be restored at reasonable cost. The Biscayne 21 trial court's $61 million restoration order is the model: courts will require restoration before considering termination on economic-waste grounds
For comparison, Bay Garden Manor in Miami Beach closed a $120 million bulk acquisition in September 2025 — JDS Development, Terra, GV Development, and RG Development together acquired more than 95 percent of the 1964 building's 238 units, financed with a $98 million senior loan. As of the closing, the deal had not produced threshold-amendment litigation. Whether the remaining minority owners ultimately sell, hold out, or end up litigating remains an open question for the next phase of that project. The lesson is not that 95 percent acquisitions always avoid Biscayne-style fights — they don't — but that the timing and method of the developer's threshold-amendment move are what determines whether litigation ensues.
How Mosaic supports the documentation
The thread running through every owner-side defense is documentation. Boards and minority owner groups that have fast access to the building's declaration, amendment history, ownership-pattern data, financial statements, and engineering reports can respond to a takeover attempt at speed. Mosaic is built around that documentation:
- Declaration and amendment history. The original declaration, every recorded amendment, every Kaufman-language clause, all searchable through the AI assistant with source citations
- Unit-ownership pattern monitoring. Track when units change hands, who the new owners are, and whether ownership concentration in single-entity LLCs is rising
- Engineering and financial records. SIRS reports, milestone inspections, reserve studies, master-policy declarations — preserved with version history so changes are visible
- Owner communication infrastructure. When a takeover attempt becomes visible, fast multi-channel communication to all owners is the difference between organizing a defense and watching the threshold-amendment vote happen without you
- 24/7 chat for owner questions. Owners asking what their declaration says, what the threshold is, what their options are — Mosaic answers from the actual association documents with source citations
For broader operational context, see our 2026 legislative session recap, our Florida HOA document request rights guide, our HOA financials evaluation guide, and our Florida HOA fees rising guide.
Frequently asked questions
Under current F.S. 718.117(3), a Plan of Termination requires approval by 80 percent of total voting interests, AND it cannot proceed if 5 percent or more of voting interests reject it by negative vote or written objection. So a developer with 80 percent can attempt termination, but a coordinated 5 percent rejection blocks the plan and bars resubmission for 24 months. The bigger question is whether the 80 percent threshold actually applies to your building. If your original declaration required unanimous (100 percent) approval and did not contain Kaufman language incorporating future statutory amendments, the Third District's Avila v. Biscayne 21 ruling holds that the 80 percent threshold cannot be retroactively applied without violating the contractual rights of the minority. The Fourth District has gone the other way in Fellman v. Mission Viejo. Which DCA your building sits in matters.
Kaufman language is a clause in a condominium declaration stating that the Florida Condominium Act applies as amended from time to time, rather than as it existed when the declaration was recorded. The term traces to Kaufman v. Shere, 347 So.2d 627 (Fla. 3d DCA 1977). If your declaration contains Kaufman language, statutory amendments lowering termination thresholds (from 100 percent unanimous to today's 80 percent) generally apply to your building automatically. If your declaration does not contain Kaufman language, the threshold in effect when the declaration was recorded is more likely to bind. Avila v. Biscayne 21 (Fla. 3d DCA 2024-2025) held that without Kaufman language, the unanimous-consent requirement in the original declaration was a contractual obligation that the developer-controlled board could not unilaterally amend by lowering the threshold. Owners can usually find their declaration on the county recorder's website and read this clause in five minutes.
Biscayne 21 is a 192-unit Miami waterfront condo built in 1964. In 2022, Two Roads Development (through TRD Biscayne LLC) acquired 183 of 192 units (about 95 percent) with $150 million in financing, intending to demolish the building for the Edition Residences. The developer-controlled board amended the declaration in August 2022 to lower the termination threshold from 100 percent to 80 percent. Holdout owners sued. The Third District Court of Appeal in Avila v. Biscayne 21, Case No. 3D23-1616, ruled that the original unanimous-consent requirement was a contractual obligation that gave each owner an effective veto over termination, and that lowering the threshold materially altered voting rights. The Florida Supreme Court declined review on October 14, 2025 (Case No. SC2025-1169), leaving the Third District ruling intact as binding precedent. In January 2026, a Miami-Dade trial court ordered Two Roads to restore the building (an estimated $61 million in repairs) after the developer had stripped windows, plumbing, and HVAC during demolition prep. Two Roads filed a new lawsuit in late January 2026 seeking equitable termination on an economic-waste theory. The case continues.
F.S. 718.117(3) provides that a Plan of Termination cannot proceed if 5 percent or more of the total voting interests reject the plan by negative vote or written objection. Equally important, if rejected on this basis, the plan cannot be resubmitted for 24 months. The practical implication is that minority owners do not need to win an 80 percent-to-20 percent vote — they need to organize 5 percent. In a 192-unit building, that is 10 owners. In a 100-unit building, it is 5. Florida community-association attorneys routinely advise that organizing the 5 percent rejection is the most cost-effective defensive strategy short of litigation. The 5 percent floor was lowered from 10 percent by SB 1520 in 2017, making termination easier than it used to be — but the floor is still meaningful.
Yes. HB 913, signed by Governor DeSantis on June 23, 2025 and effective July 1, 2025, clarified the statutory definition of economic waste and modified the bulk-owner termination pathway. Specifically, where a bulk owner holds 50 percent or more of the voting interests, an economic-waste termination requires approval by 80 percent of all voting interests. The bill also extended SIRS deadlines and provided limited reserve-funding flexibility, but those provisions are not directly tied to termination. The economic-waste pathway is the next battleground for Florida condo developer takeovers — Two Roads Development invoked it in its January 2026 follow-up lawsuit against Biscayne 21 holdouts after the Third District ruling blocked its initial threshold-amendment approach. Owners watching their building face an aging-infrastructure narrative should pay close attention to how courts apply the new economic-waste definition over the next 12 to 24 months.
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