This post uses hypothetical scenarios for illustrative purposes only. It does not describe any actual client, transaction, or representation, and is not legal advice.
Here is the Florida LLC member-consent story founders almost never hear before signing the term sheet. A typical 2026 Florida lower-middle-market sale looks like this. A founder has built a logistics LLC over a decade, has three minority members on the cap table (two early operators and one passive investor), and has been operating under the same operating agreement since formation. He signs a term sheet to sell the company to a Midwest strategic, the buyer asks for a written consent of the members authorizing the deal, and the founder pulls a signature page from a 2014 operating agreement amendment. The buyer’s M&A counsel reads the agreement carefully. Then they tell the founder the consent he is providing does not, under Florida’s 2015 revised LLC Act and 2024 amendments, actually authorize a sale of substantially all the company’s assets on these terms.
That mismatch — between what the operating agreement says about member consent and what Florida’s Revised LLC Act requires — is the most common diligence flag in 2026 Florida LLC M&A. The operating agreement, drafted before the statute was rewritten, often sets a member-consent threshold that the current statute supersedes. Founders discover this three weeks into diligence, when the buyer’s counsel asks for a member-consent package the operating agreement did not anticipate, and the minority members realize they have leverage they did not know they had. Here is how the threshold actually works under FL § 605, and why the pre-sale member-consent reset is one of the highest-ROI legal items a Florida LLC seller can do.
What Chapter 605 says about member consent for a sale
The Revised Act, which took effect in January 2015 and has been amended several times since, was modeled on the Revised Uniform Limited Liability Company Act and carries forward several defaults that are more demanding than the prior Florida statute. Two of those defaults bear on a sale transaction.
The first is the merger default. Under § 605.1023, a merger of a Florida LLC must be approved by all of the members — unanimous — unless the operating agreement provides otherwise. That is a sharper rule than most founders assume. The pre-2015 Florida LLC statute had a majority-in-interest default that many older operating agreements simply tracked without restating. When the Revised Act flipped the default, it did not flip every operating agreement signed under the old regime. The result is a class of Florida LLCs whose written governance documents say “majority” but whose statutory backstop, depending on how courts read the operating-agreement language, may still be unanimity.
The second is the sale-of-substantially-all-assets default. Under § 605.04073(1)(d), a member-managed LLC requires the consent of all members — again, unanimous — for any act outside the ordinary course of the activities of the company, which courts have treated as including the sale of all or substantially all of the assets. The operating agreement can opt out of this default, but the opt-out has to be clear. A general grant of authority to the managers, or a “Major Decisions” provision that lists asset sales but does not specifically displace § 605.04073, sits in the gray zone.
The Florida Bar’s Business Law Section flagged this gap when the Revised Act was first adopted, and the section has been republishing reminders for transactional lawyers in the years since. The practical reality is that operating agreements drafted between 2008 and 2014 — using forms that tracked the old statute — frequently do not carry forward the precise language a court would want to see to displace the new defaults. Operating agreements drafted after 2015 by Florida-licensed counsel familiar with the Revised Act usually do. Operating agreements drafted by out-of-state counsel after 2015, using a Delaware form with light Florida-conforming edits, sometimes do not.
Why this matters more in 2026 than it did in 2018
For most of the post-Revised-Act decade, the gap did not bite because deals were closing in a market where buyers were not stress-testing seller authorization. The pandemic-era frenzy produced a lot of closings on relatively thin authorization records, and buyers absorbed the risk because the underlying businesses were appreciating and rep-and-warranty insurance backstopped the seller’s organizational reps.
The 2024–2026 market is different. Buyers are slower, lawyers are more careful, and rep-and-warranty insurers have tightened their organizational-authority exclusions. The RWI carriers I have worked with in the last eighteen months now ask, as a standard underwriting question, whether the seller’s organizational documents were specifically reviewed against the current state-law default rules for member approval. A “yes, we tracked the operating agreement” is no longer enough. The carriers want the gap-analysis memo or they want an exclusion in the policy. The seller-side cost of producing that memo at signing is real, and the buyer-side cost of accepting an exclusion is also real. The cost of doing neither and discovering the gap during the buyer’s confirmatory due diligence — three days before closing — is much larger than either.
The other reason the gap matters more now is that Florida LLCs have proliferated. The state has been a major destination for both individual and PE-portfolio LLC formation since the 2017 federal tax changes made the pass-through structure more attractive, and again since the 2020–2022 relocation wave. Many of those LLCs are now hitting their first sale event. A buyer doing diligence on a Florida LLC formed in 2018 with a Delaware-form operating agreement should be — and increasingly is — asking whether the consent thresholds in the OA actually displace the Chapter 605 defaults.
What founders should do before they sign anything
First, read your operating agreement before the buyer’s counsel does. The single most useful hour a Florida LLC founder can spend in the pre-signing window is pulling the OA, finding the section that addresses consent for mergers, asset sales, and major decisions, and comparing it line-by-line with § 605.04073 and § 605.1023. If the OA does not specifically displace the statutory default — meaning it does not say something close to “notwithstanding § 605.04073 and § 605.1023, the consent of a majority in interest shall be sufficient” — assume the buyer’s counsel will treat the statutory default as controlling. The conversation is much easier when the founder raises the gap than when the buyer’s counsel does.
Second, count your members and count the dissenting risk. If the founder is the sole member, the consent question is academic — unanimous consent of one is consent. If the founder has a co-founder, an early investor, or an option-pool grantee whose options vested into membership units, the unanimity default becomes a real threshold. The most common failure mode I see is a founder who is confident that “everyone is on board” until the OA-stack diligence surfaces a 2019 grant of a 1.5% membership unit to a former employee who is now estranged from the business. That former employee, if the statutory default controls and the OA did not opt out, holds a veto.
Third, fix the OA before the deal, not during it. If the operating agreement is ambiguous on this point, the right move is to amend it before signing the LOI, not after. Amendment of the operating agreement is itself subject to a consent threshold — usually a lower one than the merger or asset-sale threshold — and getting the easier consent done early is much cleaner than trying to get the harder consent during a deal. Corporate governance work for closely held companies is significantly cheaper when it happens in the calm of a non-transactional moment than when it happens under the time pressure of a buyer’s drop-dead date.
Fourth, in a member-by-member rollover scenario, look at the appraisal-rights mechanics. Florida § 605.1006 grants appraisal rights to members who dissent from certain mergers and sales. The mechanics are different from Delaware’s § 262, and the perfection requirements — written notice of intent, no vote in favor, written demand for payment — are strict and unforgiving. A dissenter who walks through the perfection steps correctly can force the surviving company to pay fair value, with judicial determination if the company’s offer is rejected. For a founder selling to a strategic where the consideration is heavily contingent (earnouts, rollover equity, escrows), a dissenter who can perfect appraisal rights and force cash payment of fair value is a significant transaction risk. Knowing where the dissenters are — and getting them to a “yes” or a clean release before signing — is part of the same conversation as the consent threshold.
The drafting fix for the next operating agreement
For founders who are forming new Florida LLCs or amending existing ones in 2026, the drafting fix is short and worth doing. The operating agreement should specifically reference § 605.04073 and § 605.1023 and specifically displace them — with whatever consent threshold the members actually want. A clause that reads, roughly, “Notwithstanding the default rules in Chapter 605, including without limitation §§ 605.04073(1)(d) and 605.1023, the affirmative consent of members holding a majority of the units shall be sufficient to authorize a merger of the Company or a sale of all or substantially all of the Company’s assets” gets the job done. It does not need to be elegant. It needs to be specific enough that a Florida court reading it three years later cannot find an ambiguity that defaults the threshold back to unanimity.
The founder I started this post with paid for a quick amendment to his operating agreement, got the consent threshold reduced to a majority-in-interest with the existing members’ approval, and closed his deal eight weeks later without the buyer’s counsel having to raise the question on the closing checklist. The amendment cost less than a single closing-day argument would have. M&A work on Florida LLCs is, in my experience, made significantly cleaner by this kind of pre-signing housekeeping.
The Chapter 605 defaults are not buyer-friendly or seller-friendly. They are statutory defaults that need to be navigated, and the navigation is much easier when the operating agreement was written with them in mind. For a founder selling a Florida LLC in 2026, the smart move is to assume the statute does not match the OA — and to verify, before the buyer’s counsel finds the gap first.
If you are a Florida LLC founder thinking through a sale and trying to figure out whether your operating agreement actually authorizes the deal at the consent threshold you assume, feel free to reach out to my firm manager, Magda, at Magda@montague.law, or fill out our contact form. Mention you read this post.
