The Act now provides that an amendment limiting an owners right to rent a unit applies only to unit owners who consent to the amendment and unit owners who acquire title after the effective date of the amendment. Below is a summary of the changes to the condominium law made pursuant to Senate Bill 56, Senate Bill 602, Senate Bill 630, and Senate Bill 1966, that all managers, Board members, and condominium residents must become familiar with before the changes become effective on July 1, 2021. / 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. A careful analysis and potential corresponding adjustment of the Associations tenant acceptance policy could protect the Association should a disgruntled applicant bring a FHA claim against the Association. All Rights Reserved. Other grounds that might be argued to be reasonable in connection with the disapproval of an applicant seeking to reside in a community may include the following: (1) the applicant has been convicted by a court of a felony involving violence to persons or property, or a felony demonstrating dishonesty or moral turpitude, and has not had their The reason for disapproval must also meet the requirements of statutes. 2022 FCAP - Florida Community Association Professionals, LLC. (Section 718.1255(4), F.S. 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. The principles relating to formation, management, powers, and operation, as set forth in the Condominium Act, are often very similar to the analogous principles of the HAA. Board Candidate Eligibility Section 718.112(2)(d)2, F.S., (SB 1966, Page 39). 13. Notifications from this discussion will be disabled. The answer is more complicated than you may think. Commissioners of Broward County, Fla., passed an ordinance in September requiring HOAs to provide written notice to rejected applicants detailing the reason for the rejection. (Section 718.111(12)(g)1, F.S. The unit owner is responsible for complying with all federal, state, or local laws or regulations applicable to the installation, maintenance, or removal of an electric vehicle charging station or a natural gas charging station. Rules can be changed by unit owners voting to amend the declaration. - A bank has commenced foreclosure proceedings against a unit Owner but not taken possession of the unit - The Condo association has liened the Owner for past due assessments -The condo Owner has declared bankruptcy -The Condo Owner has a renter in the unit & is collecting rent 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. Section 718.110(13), Florida Statutes states that the rental restriction applies to condominium owners who acquire title to their units after the effective date of that amendment and to those who consent to the amendment. The contact form sends information by non-encrypted email, which is not secure. Residents of the Crestview Towers Condominium carry their belongings as they leave their building in North Miami Beach, Florida, on July 2. 17. The law also now provides that a person is delinquent if a payment is not made by the due date as specifically identified in the Declaration of Condominium, Bylaws, or Articles of Incorporation. Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. 5. 2507 (2015). These rules were also intended to address a growing concern that tenants are purchasing illegitimate documentation for emotional . Why Condominium Associations Must Carefully Evaluate Their Long-Standing Tenant Approval Policies. William G. Morris and his firm have represented clients in Collier County for over 30 years. Rule 61B-23 ; Florida Condominium Association Board Members Voting . 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. Courtesy Notice of Late Assessment Section 718.121(5), F.S., (SB 56, Page 12). 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. Conflicts between Chapter 718, Condominium Act, and Chapter 617, Florida Not for Profit Corporation Act (SB 602, Page 16). The law defines the term actual costs to include, but is not limited to, expenditures for demolition, site clearing, permit fees, impact fees, and utility reservation fees, as well as architectural, engineering, and surveying fees that directly relate to construction and development of the condominium property. 3. (Sections 718.1255 (4) and (5), F.S. Those restrictions, once adopted into an associations governing documents, will apply to all owners in the association regardless of when or how the owners title was acquired and regardless of how that owner voted as to an amendment adopting said restrictions. The investment group appealed and was successful, with the appellate court ruling that the change was a deprivation of property rights. Although nothing will completely prevent challenges by applicants and potential liability in this process, the Association should consult with legal counsel, and carefully evaluate whether any changes to its tenant application process are necessary to prevent discrimination against a minority group or to ensure compliance with applicable laws and the Associations governing documents. The association eventually settled the case by paying the former president $550,000 and agreeing to purchase her condominium unit. A:Yes, the statutes only require that the notice of the meeting along with the election materials be sent at least fourteen (14) days before the meeting and election. What might those be? State law limits such fees to . That case started when an investment group bought a condominium and the owners in the condominium later amended the declaration to limit rentals. In determining the validity of a condominium association's leasing restrictions, the court in Seagate Condo. The law clarifies that the quorum and amendment restrictions in Chapter 617, Florida Statutes (the Florida Not for Profit Corporation Act), do not apply to condominium associations governed by Chapter 718, Florida Statutes. each comment to let us know of abusive posts. These new laws clarify how residents of Florida can properly qualify for an emotional support animal and affirm the special rights ESA owners have. 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 . Senate Bill 630 went into effect on July 1, 2021. The law applies to all condos, apartments, and rental homes. . Fax: (561) 471-0522. Jacob Epstein is an associate with the Miami-based law firm of Haber Slade, P.A. Speak to a real estate attorney! We'd love to hear eyewitness To view past articles, please click Publications on our firm website. NOTE: Our Client Portal is Currently Undergoing Maintenance. The bill modifies certain provisions in the Florida Statutes that impact condominium associations and homeowners' associations. The owner has requested to review minutes of meetings between the board and its attorney to discuss this litigation. The information in this column is general in nature and not intended as legal advice. Your Florida Condominium Association Hurricane Preparedness Plan ; Your Florida Condominium Board Member Electronic Voting and Communication Policy ; Florida Condominium Association Board Election Procedures: Florida Statute 718.112(2)(d) and Florida Administrative Code (F.A.C.) The failure to adopt the annual budget a second time is a minor violation and the prior years budget will continue in effect until new a budget is adopted. Some experts have gone so far as to state an association must buy a condominium unit when it refuses to approve a sale. However, effective July 1, 2021, a declaration or other governing document of a homeowners association that has more than 15 parcel owners, or an amendment to a declaration or other governing document of such a homeowners association, that contains a prohibition or regulation as to rental agreements, applies only to a parcel owner who acquires title to the parcel after the effective date of the governing document or amendment, or to a parcel owner who consents, individually or through a representative, to the governing document or amendment. The preemptive right allowed a sale for 95 percent of the offered price and you signed a third-party contract at $9.7 million, well within the 5 percent tolerance. Posted 6 years ago. Questions regarding the content of this article may be emailed to Christopher Pope at chrispope@paveselaw.com. Please visit our website at. A:Florida law supports the right of a condominium association or homeowners association to review and approve prospective leases and tenants. HOA/Condo laws in Florida allow HOAs considerable discretion in approving or denying potential buyers and renters. of Hous. The investment group argued the amendment was a violation of their property rights. The building, about 6 miles from Surfside, was deemed. Tenant Approval Procedures Some HOA's are placing themselves in a position to actually screen the tenants that a non-occupant owner selects to rent. NOTE: Our Client Portal is Currently Undergoing Maintenance. He can be reached at jepstein@dhaberlaw.com. (Section 718.111(12)(a)11d, F.S. (and their tenants' and guests') right to use the common elements of the property if the homeowner is more than 90 days delinquent in paying their maintenance fees. 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. Under Fla. Stat. Note that notice may now also be posted on association property (i.e. 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. 7. Condominium associations only have the authority to impose this additional security deposit requirement on a tenant if the authority is so given in the Declaration. West Palm Beach, FL 33415 However, the association may deny access based on a governmental order or determination, or a public health directive from the Centers for Disease Control and Prevention, prohibiting access to a unit. 6 Texas Dept. The trial court disagreed and explained the investment group bought knowing unit owners could amend the declaration at any time. Note: Senate Bill 56, Senate Bill 602 and Senate Bill 630 have been signed by the Governor, so the changes are law effective July 1, 2021. I would also recommend reviewing the associations bylaws as this document sometimes contains notice requirements which are more restrictive than the statutory requirements. If the Association does have tenant approval power, whatever the reason for rejecting the tenant, the Association must be prepared to explain. may be leased or rented without the approval of the Association. This case illustrates just one of the many reasons why it is essential for community associations considering new lease restrictions to work in close consultation with extremely well qualified association attorneys. For guidance as to how to prepare a proposed amendment to your HOA declaration that complies with the new HOA rental restrictions or for guidance on additional changes resulting from Florida SB 630, you can reach out to our association law team. (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). 1. Basically, an association may disapprove a lease or prospective tenant, if the basis for the disapproval is reasonable and non-discriminatory. The board has a fiduciary obligation to those in their condominium community to protect the community. Frequently asked question about Condo & HOA Law from Florida Lawyers Goede, DeBoest & Cross: Multidisciplined Florida Attorneys. However, condominiums can refuse to approve a transfer when the unit owner is delinquent in amounts due to the association. That did not retroactively protect the investor group in the Jahren case, but protects owners now. A member of the Board will conduct an interview with the purchaser or tenant and issue a Certificate of Approval, if applicable. A sworn affidavit by a Board member, officer, or agent of the association, or a licensed manager, attesting to the mailing will establish a rebuttable presumption that the association complied with these notice and delivery requirements for the notice of late assessments. The Division now retains jurisdiction to investigate complaints against developers for failure to maintain the associations official records. Changing rental rules were addressed by Floridas Supreme Court in the 2002 case of, Woodside Village Condominium Association v. Jahren. That reduced the fees charged by the greedy, but almost every other condominium association quickly increased their estoppel fee to $250. It also provides that condominium associations may charge a fee for approval of leases or sales, as long as the fee is provided in the declaration, articles or bylaws. You have permission to edit this article. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.
If the association has only sent the package to the printer, for example, and not actually postmarked the package, there is still time and the election would not be overturned provided the package is timely mailed. (d) Construction Lien Section 718.121(2), F.S., (SB 630, Page 35). Despite this recent expansion of the FHAs reach, Associations retain the discretion to reject tenant applications for a variety of reasons. . Note: Be wary of using credit history as a ground for disapproval. The law has been changed to allow the principal office of the Ombudsman to be located outside of Leon County, Florida. If the allegations in the lawsuit hold up in court, the association could be forced to pay the plaintiff unit-owners lost rental income and legal bills. As my colleague Laura Manning-Hudson wrote in this blog in her June 9 post titled Suit Against Boca Condo Association Spotlights Importance of Governing Document Amendments, Filings, a lawsuit filed earlier this year against Boca Pointe Condominium Association highlights the importance of properly adopting leasing restrictions to an associations governing documents and recording them in the local court registry where the association is located. In, Phillips v. Hunter Trails Community Association. So, it is possible that the rule is valid, but you should first have the Declaration and the rule analyzed by a licensed Florida attorney to determine whether the authority is properly vested in the board. and Urban Dev. Fax: (239) 542-8953, 4524 Gun Club Rd. I recently listed my townhome for rent and I am currently waiting on the results of the tenant screening for my potential renter. 1. Unit owners may now challenge a recall rejected by the Board of Directors in a court of law rather than pursue arbitration through the Division of Florida Condominiums, Timeshares, and Mobile Homes (Division) within the DBPR. (f) Creates Subsection 718.1265(3), F.S., to provide that during a declared state of emergency, condominium associations may not prohibit unit owners, tenants, guests, agents, or invitees of a unit owner from accessing the unit and the common elements and limited common elements for the purposes of ingress to and egress from the unit. On the other hand, a condominium is real estate. The deposit must not exceed the equivalent of one month's rent and be placed into an escrow account which the Association is responsible for maintaining. / SB 630, Page 9), (c) The association may not require a unit owner to demonstrate any purpose or state any reason for inspecting the official records of the association. The investment group argued the amendment was a violation of their property rights. FCAP Member Advantage eNewsletter
Florida community associations typically have the right under their governing documents to regulate and approve leases and tenants. In no event, however, may an association disapprove a proposed purchaser or lessee on the basis of race, gender, religion, national origin, or physical or mental handicap. On June 16, 2021, Governor DeSantis signed Florida SB 630, which will become effective on July 1, 2021. On the other hand, the statute also provides that owners are not entitled to access official records which includes any attorney client privilege or attorney work product prepared in connection with a lawsuit. 2d 452 (Fla. 2002). If the tenant fails to comply, the association can evict the tenant under the landlord-tenant statute by serving a three-day notice to pay or vacate . Here we explain the ordinance and discuss whether other states allow associations to approve or reject potential HOA purchasers and renters, and the pros and cons. and Urban Dev., 56 F.3d 1243 (10th Cir. Board Recalls Section 718.112(2)(j(4), F.S., (SB 630, Page 28). If the Declaration provides, for example, only that the owner is required to provide a copy of the lease to the association, the implication is that the Board has no right to approve or deny and that the board only has a right to demand a copy. In particular, the rental prohibition or regulation will not apply to an heir who acquires the title as a result of the prior owners death or where title is transferred from the prior owner to an entity affiliated with a prior owner. 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. (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. For more information, call us at (954) 241-2260, send an e-mail to info@themold.lawyer. 2. (c) Unit owners must affirmatively acknowledge their understanding that the association has changed its method of delivering the invoices for assessments or statements of account to delivery in writing or by electronic transmission. Most people believe associations have an inherent right to approve sales or leases, but that is not the case. Florida recently passed new laws governing emotional support animals (ESA) which go into effect on July 1, 2020. An overview of florida condominium association collections of past due maintenance fees. Share with Us. 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. Be Truthful. A: No. 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. The Fair Housing Act includes familial status (children) as a protected class. Highly experienced community association counselors can quickly ascertain if any proposed changes require amendments to the governing documents or whether they may be enacted by a simple board vote. of Housing and Community Affairs, 135 S.Ct. T he tenant application process to a condominium association can be long, arduous, and sometimes, expensive. By doing so under close consultation with highly qualified legal counsel, associations can move confidently to develop and implement the policies and protocols that make the most sense for their community. / SB 630, Page 40), 12. 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. Additionally, the Associations governing documents may or may not include the power to accept or reject a tenant for any reason or without having to provide an explanation.