The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. In other words, previous legal cases addressing the restrictions on a persons ability to sell or transfer real property have upheld the restrictions only to the extent that they are considered reasonable. A landlord typically has a lease that allows the landlord to give the tenant a certain amount of time to correct a problem, move out, or face eviction. In that case, the purchaser was African American and established that he was denied approval because of his race. Q:Our community has a very strict tenant screening process and my neighbor has had multiple tenants denied due to poor background checks. In Phillips v. Hunter Trails Community Association, the rejected buyer recovered almost $200,000 in damages even though the association exercised a right of first refusal. As a result, HOA governing documents or amendments that were recorded prior to July 1, 2021, and which contained prohibitions or regulations as to rental agreements, remain binding as to all owners, regardless of the nature of those prohibitions or regulations. The Florida Department of Business and Professional Regulation, Division of Condominiums, explains that even if a condominium declaration makes an item the unit owners' responsibility, when that item is not among these statutory exclusions, the declaration provision is preempted by the Act and the association remains responsible for the . Note, however, that Section 718.112(2)(n), F.S., was not amended and still provides that a director or officer more than 90 days delinquent in the payment of any monetary obligation due the association shall be deemed to have abandoned the office, creating a vacancy in the office to be filled according to law. The trial court disagreed and explained the investment group bought knowing unit owners could amend the declaration at any time. The contact form sends information by non-encrypted email, which is not secure. Condominiums Rights to Approve Transfers, Rules can be changed by unit owners voting to amend the declaration. Condominiums are on a slippery slope when exercising approval authority. Such is the case in Woodside Village Condominium Association, Inc. v. Jahren, 806 So. An overwhelming number of board members seem to think that their associations have unfettered rights to interview, screen and either accept or reject prospective owners or tenants who are interested in purchasing or renting units within their community. The Condominium Act does not merely address rental limitations. Phone: 855-331-5100 | Fax: 1-866-462-1501. Documents provided to NPR show the board approved seeking a $15 million line of credit on April 13, 2021. Depending upon the circumstances, that may be a charge of either (1) tampering with evidence as provided in Florida Statute 918.13 or (2) obstruction of justice as . The information you obtain at this site is not, nor is it intended to be, legal advice. Fort Myers, FL 33901 Changing rental rules were addressed by Floridas Supreme Court in the 2002 case of Woodside Village Condominium Association v. Jahren. Specifically, the Department of Housing and Urban Development has warned housing providers of potential FHA liability for denying tenant applications based on requests by individuals with disabilities to reside with assistance animals.5 Associations must be careful to ensure that their tenant application policy and reasons for denying tenant applications do not have a disparate impact on any particular race, sex, or people of any particular national origin or familial status, or for that matter, on people with disabilities. It is unclear what is meant by the reference to an owner who consents to the governing document as no vote of the parcel owners is taken at the time a declaration (the governing document) is first adopted. 718.116(4) of the Condominium Act states: " If the association is authorized by the declaration or bylaws to approve or disapprove a proposed lease of a unit, the grounds for disapproval may include, but are not limited to, a unit owner being delinquent in the payment of an assessment at the time approval is sought." You have permission to edit this article. 15. The board adopted a rule requiring the background checks, but we cant actually find anything about this in the Declaration itself. All Rights Reserved. Most agree that the financial records for a tenant are almost irrelevant since it is the unit owner who is responsible for paying the association. The prospective owner in the latter case went to court and the judge ruled insisting on tax returns was overreaching and unenforceable. Illegal Discriminatory Restrictions Section 718.112(1)(c), F.S., (SB 630, Page 16). In Aquarian Foundation v. Sholom House, 448 So.2d 1166 (Fla. 3d DCA 1984), Florida's Third District Court of Appeal considered the validity of a condominium association's transfer restrictions . This means a person is no longer ineligible to be a candidate because they are delinquent on fines, fees, or any other monetary obligation other than assessments. ), (b) The statute now provides that arbitration is binding on the parties if all parties agree to be bound in writing. The term monetary obligation was replaced with the term assessment for purposes of determining whether a person is ineligible to be a candidate to serve on the Board. (Sections 718.1255 (4) and (5), F.S. If the Declaration provides this authority to the association, the maximum amount an association can charge a tenant for such a security deposit is one month's rent, as defined in . In addition, the association may not prohibit access that is necessary for the sale, lease, or other transfer of title to a unit; or the habitability of the unit; or for the health and safety of such persons. Attorney at Law at Dania S. Fernandez and Associates, P.A. The investment group appealed and was successful, with the appellate court ruling that the change was a deprivation of property rights. Transfer Fees/Security Deposits Section 718.112(2)(i), F.S., (SB 630 Page 25), The maximum permissible transfer fee has been increased from $100 to $150. This statute includes natural gas fuel stations in the prohibition against filing a lien against a condominium association for labor or materials related to the installation of an electric vehicle charging station. The condominium association may establish a maximum number of rental units within the project. Despite this recent expansion of the FHAs reach, Associations retain the discretion to reject tenant applications for a variety of reasons. The Board may make available, install, or operate an electric vehicle charging station or a natural gas fuel station upon the common elements or association property, and establish the charges or the manner of payments for the unit owners, residents, or guests who use the electric vehicle charging station or a natural gas fuel station. Please visit our website at. . This article provides a basic overview of the limitations affecting associations with regard to the ability to approve or disapprove individuals seeking to purchase or lease within the community. A unit owner or lienor may contest a plan of termination through pre-suit mediation, and then file in a court of law as an alternative to arbitration with the Division. The statute was amended to permit a unit owner to install a natural gas fuel station, subject to the same requirements as a unit owner installing an electric vehicle charging station. The unit owner is responsible for the cost for the supply and storage of the natural gas fuel station. Notice of Intent to Foreclose Section 718.116(6)(b), F.S., (SB 56, Page 9). Section 718.016 (4) of the Florida Condominium Act states that a tenant leasing a unit has the right to use all association property and common elements that are otherwise generally available for use by unit owners, unless the tenant has waived this right in writing. All Rights Reserved. A: No. 9. There is a new statutory form notice of late assessments that must be delivered to the unit owner before the association can require the payment of attorney fees related to past due assessments. Your message has failed. (b) Exclusively Designated Parking Spaces Section 718.113(8)(a), F.S., (SB 630, Page 30), The locations where the association may not prohibit an electric vehicle charging station and a natural gas fuel station was expanded from the limited common elements to also include an exclusively designated parking area., (c) Association Charging Stations Section 718.113(9), F.S., (SB 630, Page 33). 14. Among the changes made was one that restricts the right of a homeowners association to implement rental restrictions applicable to properties subject to the association's governing documents. A condominium associations right to approve sales or leases is almost mythical. A few greedy condos, mostly in the Miami area, charged five and even ten times that amount. Copyright 2023, Pavese Law Firm. The contact form sends information by non-encrypted email, which is not secure. He concentrates his practice in the areas of complex commercial and business litigation, real estate leasing and construction, contract negotiations, real estate development disputes, condominium and community association law and bankruptcy litigation. / SB 630, Page 7), (b) The new law clarifies that a renter only has the right to inspect and copy the Declaration of Condominium, the Bylaws, and Rules. This new statutory provision will be reflected in a new subsection (h), to be added to Section 720.306 of the Florida Statutes. He concentrates his practice areas on business litigation, condominium and community association law, construction law, and real estate litigation. Some governing documents give the Board of Directors plenary power to adopt, modify or otherwise change use restrictions. In addition, it is imperative for associations to base their decisions on legitimate factors as provided within the policies set forth in their governing documents, including but not limited to matters such as credit worthiness, evictions, criminal records, interviews with past landlords, and others. I recently listed my townhome for rent and I am currently waiting on the results of the tenant screening for my potential renter. In Florida, there must be some authority for a Board of Directors to create or promulgate rules and regulations regarding use or occupancy of the property. Annual Budget Section 718.112(2)(f)1, F.S., (SB 1966, Page 46). Please contact the firm for more information. The Association should carefully consider its policy regarding tenant applications, specifically the criteria used by the Association in making its decisions, to ensure that valid interests are protected by such policy. . On the other hand, a condominium is real estate. Florida Statute section 718.111 (11) (f) requires that the condo association maintain insurance on "all portions of the condominium property as originally installed" or as replaced in accordance with the original plans and specifications. (1) If a landlord requires a prospective tenant to complete a rental application before residing in a rental unit, the landlord must complete processing of a rental application submitted by a prospective tenant who is a servicemember, as defined in s. 250.01, within 7 days after submission and must, within that 7-day period, notify the Section 718.112(2)(p), F.S., dealing with conflicts of interest, was repealed. The building, about 6 miles from Surfside, was deemed. If the Declaration provides, for example, only that all leases must be approved by the board, this may be sufficient authority for the board to adopt a rule or resolution setting forth good cause for denial. 1995); U.S. v. Weiss, 847 F. Supp. When you apply to rent a house: the only approval you need is from the homeowner. Generally speaking, if an association's recorded governing documents do not contain the authority to evict a tenant within the condominium, then the association probably does not have the power to do so, unless there is a separate written agreement delegating that authority from the unit owner/landlord. HOA/Condo laws in Florida allow HOAs considerable discretion in approving or denying potential buyers and renters. Note that notice may now also be posted on association property (i.e. Providing access to settlement parameters would severely hinder the Associations negotiating position and attorney client privilege is sacred and should not be waived during the pendency of litigation absent a clear intention to do so. Alternative Dispute Resolution Section 718.1255, F.S., (SB 630, Pages 40 46), (a) In lieu of initiating non-binding arbitration, a party may submit a dispute to the pre-suit mediation process in accordance with Section 720.311, F.S., and then file in a court of law, which is the same procedure currently used by homeowners associations. Brad Sohn, a lawyer representing at least one resident who has filed a lawsuit against the Champlain Towers South Condominium Association, said on Saturday that residents were facing. The only leasing restriction in the associations recorded declaration states that owners are only restricted from renting units for terms of less than thirty days, contradicting the new restriction that the board tried to implement. on Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs, FHEO-2013-01 (April 25, 2013). Most experts agree that the conviction of a violent felony might be sufficient or a history of refusing to follow the rules where the proposed new owner has lived. Speak to a real estate attorney! that is degrading to another person. In other words, the association must have the express authority to deny transfers of title, and the restrictions on such sales must be reasonable. The minutes include votes on settlement parameters and include opinions of our counsel. William G. Morris is the principal of William G. Morris, P.A. One measure that the courts have determined to be reasonable when disapproving a potential sale of a home or unit is the right of first refusal, which would require an association or its designated representative to step in and consummate the sale or lease of the potential purchaser or tenant who is disapproved. That case started when an investment group bought a condominium and the owners in the condominium later amended the declaration to limit rentals. He can be reached at dpodein@dhaberlaw.com. All of the factors that the association is considering, including credit scores, background checks and history of foreclosures or evictions, must be applied evenly to all potential buyers. HOME; . The HOA application states that the screening process is said to take up to 30 days. The information provided herein is for informational purposes only and should not be construed as legal advice. (b) Authorizes the Board to conduct Board meetings, committee meetings, membership meetings, and elections, in whole or in part, by telephone, real-time videoconferencing, or similar real-time electronic or video communication. What happens when an association wrongfully refuses to approve a transfer? The fee may not be more than $100 per applicant and a husband/wife or parent/dependent child are considered one applicant. Is this a valid protocol? The case ended up at the Florida Supreme Court and the Justices agreed with the trial court, leaving the investment group with a condominium unit they could no longer rent as intended. and Urban Dev. The FHA prohibits housing providers from refusing to otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.4 Despite the FHAs language, which provides protections for minority groups based on race, color, religion, sex, familial status, or national origin, the FHAs reach has been expanded to protect other minority groups not specifically listed in the statute. No owner or agent shall execute a lease with any proposed Florida recently passed new laws governing emotional support animals (ESA) which go into effect on July 1, 2020. 2021 LEGISLATIVE UPDATE FOR FLORIDA CONDOMINIUM ASSOCIATIONS. Forgery of a ballot envelope or voting certificate used in a condominium association election is punishable as provided in s. 831.01, the theft or embezzlement of funds of a condominium association is punishable as provided in s. 812.014, and the destruction of or the refusal to allow inspection or copying of an official record of a condominium . / SB 630, Page 9), (d) Associations with 150 units may now provide certain specified documents through an application that can be downloaded on a mobile device, rather than posting them to the associations website. Again, the restrictions will not apply to rental restrictions that are in place prior to July 1, 2021. If a due date is not specifically identified in the Declaration of Condominium, Bylaws, or Articles of Incorporation, the due date is the first day of the assessment period. Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. 2. Alternative Fuel Charging Stations, (a) Natural Gas Charging Stations Section 718.113(8), F.S., (SB 630, Page 30). In the Inclusive Communities Project opinion, Justice Kennedy explained: An important and appropriate means of ensuring that disparate-impact liability is properly limited is to give housing authorities and private developers leeway to state and explain the valid interest served by their policies. For example, prior to the Inclusive Communities Project decision, certain federal Courts found that limiting the number of occupants in a unit can be an acceptable policy under the FHA. 13. Don't Threaten. Fax: (561) 471-0522. For example, if it can be demonstrated that the Associations reliance on a certain type of background check to reject tenant applications has a disparate impact on a minority group, the Association may open itself up to potential FHA liability.