CAN YOUR ASSOCIATION PROHIBIT OR LIMIT RENTING?
By
Eric Glazer, Esq.
Published September 26, 2022
I am
getting swamped lately with requests from both condos and HOAs
as to how to limit the number of homes or units that are being
rented. People are getting real tired of Air BNB type scenarios
and want to know how they can put a stop to it.
Some
background on this topic is necessary. In the landmark case of
Woodside v. Jahren 806 So.2d 45
(Fla. 2002) Mr. Jahren owned two units in the
condominium and he had been renting same for many years. The
members of the association then voted to restrict renting to no
more than nine (9) months in any 12 month period. Mr. Jahren
argued that these amendments cannot be applied to him because
these restrictions are unreasonable, deprive him of the use of
his property, and were not there when he originally purchased
the unit.
At The Florida Supreme Court, he lost. The court held that
these restrictions prohibiting leasing were reasonable and do
apply to him. The court reminded everyone that condo living is
simply different than living in your own private home.
Courts have recognized that condominium living is unique and
involves a greater degree of restrictions upon the rights of the
individual unit owners when compared to other property owners.
See Seagate Condominium Ass'n, 330 So.2d at 486 (citing cases).
For instance, in
White Egret Condominium, Inc. v. Franklin, 379 So.2d 346
(Fla.1979), we recognized that “[r]easonable
restrictions concerning use, occupancy and transfer of
condominium units are necessary for the operation and protection
of the owners in the condominium concept.” Id. at 350. In
White Egret, we quoted favorably from
Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180 (Fla. 4th
DCA 1975), to further explain the restrictive nature of
condominium ownership and living:
[I]nherent in the condominium concept is the principle that to
promote the health, happiness, and peace of mind of the majority
of the unit owners since they are living in such close proximity
and using facilities in common, each unit owner must give up a
certain degree of freedom of choice which he might otherwise
enjoy in separate, privately owned property. Condominium unit
owners comprise a little democratic sub society of necessity
more restrictive as it pertains to use of condominium property
than may be existent outside the condominium organization. White
Egret, 379 So.2d at 350. Consistent with this analysis of
condominium ownership, courts have acknowledged that “increased
controls and limitations upon the rights of unit owners to
transfer their property are necessary concomitants of
condominium living.” Aquarian Foundation, Inc. v. Sholom House,
Inc., 448 So.2d 1166, 1167 (Fla. 3d DCA 1984). Indeed, section
718.104(5), Florida Statutes (2000), expressly recognizes that a
declaration of condominium may contain restrictions concerning
the use, occupancy, and transfer of units. See § 718.104(5),
Fla. Stat. (2000).Courts have also consistently recognized that
restrictions contained within a declaration of condominium
should be clothed with a very strong presumption of validity
when challenged.
So, the
restrictions on rentals stood. However, Justice Quince thought
that this ruling was unfair to Mr. Jahren and stated in her
concurring opinion, the
amendment has deprived these owners of a valuable right that
existed at the time of purchase. This valuable right may well
have been the determinative factor for their decisions to buy
these properties. As the district court suggested, there
should at least be some type of “escape” provision for those
“unit owners whose substantial property rights are altered by
amendments to declarations adopted after they acquire their
property.”
The Florida Legislature listened and passed Florida Statute
718.110(13) which states:
(13) An
amendment prohibiting unit owners from renting their units or
altering the duration of the rental term or specifying or
limiting the number of times unit owners are entitled to rent
their units during a specified period applies only to unit
owners who consent to the amendment and unit owners who acquire
title to their units after the effective date of that amendment.
So…….in a condominium, even if your declaration requires a 75%
vote to amend, and you get 75% of the owners to vote in favor of
no more rentals, that amendment will not apply to anyone who did
not specifically consent to the amendment.
Next week we will talk about HOAs.
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About
HOA & Condo Blog
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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 three decades and is the owner of
Glazer and Sachs, P.A. a five attorney law firm with
offices in Fort Lauderdale and Orlando.
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Eric is Board Certified by The Florida Bar in
Condominium and Planned Development Law.
Since 2009, Eric has been the host of Condo Craze
and HOAs, a weekly one hour radio show that airs at 11:00 a.m.
each Sunday on 850 WFTL.
See:
www.condocrazeandhoas.com.
Eric is the first attorney in the State of
Florida that designed a course that certifies condominium and
HOA residents as eligible to serve on a Board of Directors and
has now certified more than 20,000 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.
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