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Unanimous Member Consent Required to Amend an Operating Agreement

Since January 1, 2015, the Florida Revised LLC Act (“Revised Act”), Chapter 605, Florida Statutes, governs all limited liability companies organized under the laws of Florida. § 605.1108(2), Fla. Stat. In a “manager-managed” LLC, “a matter relating to the activities and affairs of the company is decided exclusively by . . . the managers, except as expressly provided in this chapter.” § 605.0407(3), Fla. Stat. This exception is important, as the Revised Act expressly requires unanimous member consent to amend the operating agreement.

Section 605.04073(2), Florida Statutes, entitled “voting rights of members and managers,” provides as follows:

(2) In a manager-managed limited liability company, the following rules apply:

(e) the operating agreement and articles of organization may be amended only with the affirmative vote or consent of all members.

(Emphasis added). Indeed, section 605.04073 makes unanimous member consent mandatory and does not authorize a prior operating agreement to override this requirement.

In contrast, the now-repealed LLC Act, chapter 608, Florida Statutes, allowed an operating agreement to authorize amendments without the consent of the members: “the articles of organization or operating agreement may provide for the taking of an action, including the amendment of the articles of organization or operating agreement, without the vote or approval of any member or class or group of members . . . .” § 608.4231(1), Fla. Stat. (2008). The Legislature’s decision, effective as of January 1, 2015, to remove this language from the repealed statute is guiding and demonstrates the change was intentional: “[w]here the legislature amends a statute and in so doing omits a portion of it, common sense dictates that the legislature intended to remove that portion of the statute from the law.” Bacon v. Marden, 518 So. 2d 925, 926 (Fla. 3d DCA 1987).

Therefore, under the Revised Act, section 605.04073(2)(e), Florida Statutes, a manager’s unilateral attempt to amend an operating agreement – even if the original operating agreement or Article of Organization provides for it – are unenforceable as a matter of law without unanimous member consent.

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