THAT’S NOT MY TENANT
---- THAT’S MY FAMILY!
Eric Glazer, Esq.
Published April 18, 2016
Last week we blogged about the association’s
ability or perhaps inability, to limit the number of rentals in
the community. We also discussed the differences between the
condominium statute and the HOA statute regarding same. This
week, let’s focus on a related topic, short term rentals.
Most governing documents contain clauses that
require leases to be for a minimum term, i.e. not less than six
months or not less than ninety days. The clear intent of these
provisions is to prevent the community from becoming transient
in nature. You don’t want the place to in effect become a hotel,
with people constantly moving in or out, by the month, week or
even by the day.
Here’s the problem. Lots of people have
figured out that they can make a lot more money renting out
their condo or home by the day, instead of by the month. Your
ocean front condominium for example may rent for $2,500.00 per
month, but can also be rented for $200.00 per day or $6,000.00
per month. But what do we do about those pesky restrictions in
the governing documents that say I’m prohibited from renting my
unit for a term less than ninety days for example?
The most common scam is that the unit owner
says that “I’m not renting the unit. Those people are not my
tenants. I have a large family and they are all family members.”
Now don’t get me wrong….. diversity is wonderful. But when the
alleged family is made up of Jews, Muslims, Blacks, Whites and
Koreans, excuse me for being a little skeptical. I just don’t
buy it. The problem is however, how do you prove the owner is
lying? Since governing documents also usually contain language
indicating that the unit may be used by the owner and his or her
family members, technically the association must let the family
Some other owners take the position that “I’m
not charging these folks anything to stay in my unit, so that
means they aren’t my tenants, they are my guests.” The documents
allow me to have “guests” so leave me alone. Of course “guests”
don’t wind up paying money to stay in your home, but proving
that these “guests” are actually short term “tenants” and that
they pay money, is often times impossible.
So, how do we catch the bad guys who
completely ignore the short term rental restrictions in your
community? One way may be to simply set them up. You heard me –
set them up. So many of these owners are brazen enough to
advertise their units on a multitude of short term rental
websites. When you see these advertisements, print them out and
save them. Then call them and try to reserve it for a night or
two. I would have no objection if the association even had to
pay for the room for a night or two in order to catch the owner
in the act. And when you find out and can prove which unit was
advertised and actually rented to you for a night or two, you
sue the owner and get an injunction and your attorney’s fees
assessed against him or her. And afterwards……. you publicize the
hell out of it in the community newsletter as a warning to
everyone else who thinks the Board members and management are
dumb enough to believe that you have that many family members
who actually like you enough to come visit.
There may be another way to at least slow
down the law breakers. You can severely limit the term “family”
in your governing documents to only include “children or parents
of the owner.” Everyone else will be considered a “guest.” You
then take it one step further and amend your documents to say
that “guests” can only occupy the unit if the owner is present.
If you can prove that the guests were occupying the unit in the
absence of the owner, go get your injunction.
There is no perfect solution to this problem.
As we all know, every time a process is put in place to catch
bad guys, the bad guys figure out a way to get around it, or
make a valiant effort. Doing nothing and ignoring the problem is
certainly not the solution however. I’m all ears if any of you
have dealt with this issue before and have figured out a way to
HOA & Condo Blog
Eric Glazer graduated from
the University of Miami School of Law in 1992 after
receiving a B.A. from NYU. He has practiced community
association law for more than 2
decades and is the owner of Glazer
and Associates, P.A. a seven attorney law firm with offices in
Fort Lauderdale and Orlando and satellite offices in Naples,
Fort Myers and Tampa.
Since 2009, Eric has been the host
of Condo Craze and HOAs, a weekly one hour radio show that airs
at noon each Sunday on 850 WFTL.
He is the first attorney in the
State of Florida that designed a course that certifies
condominium residents as eligible to serve on a condominium
Board of Directors and has now certified more than 10,000
Floridians all across the state. He is certified as a Circuit
Court Mediator by The Florida Supreme Court and has mediated
dozens of disputes between associations and unit owners. Eric
also devotes significant time to advancing legislation in the
best interest of Florida community association members.