When weighing the information discovered during the application process, the Association must consider: (i) whether the Associations process for approving and/or rejecting prospective tenant applications complies with the Associations governing documents and current laws; (ii) whether the evaluation criteria used by the Association will have a disparate impact on a minority group; and (iii) whether the Association can provide a prospective tenant with a specific and appropriate reason for rejection. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship. Notice of Intent to Lien Section 718.121(6), F.S., (SB 56, Page 13). seq., is similar to the Homeowners' Association Act (HAA), except that it applies to condominium associations rather than homeowners' associations.. 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 . and Urban Dev., 56 F.3d 1243 (10th Cir. Simply stated, the opinion holds that a condominium's governing documents may be amended to ban or restrict a unit owner's right to lease his or her unit, even where the resident . 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 . 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. The buyer has just completed due diligence and determined that the building needs a new roof and demands a $300,000 credit against the purchase price. However, those exceptions are limited to: (a) rental restrictions that prohibit or regulate lease terms which are less than 6 months; and (b) rental restrictions that prohibit rentals of a parcel more than three times in a calendar year. That case started when an investment group bought a condominium and the owners in the condominium later amended the declaration to limit rentals. (Section 718.1255(4), F.S. The bill modifies certain provisions in the Florida Statutes that impact condominium associations and homeowners associations. Share with Us. Note: Be wary of using credit history as a ground for disapproval. By: Christopher L. Pope, Esq., Board Certified by the Florida Bar in both Construction Law and Condominium and Planned Development Law. Talk to a Lawyer 1833 Hendry Street Given the sensitive nature of those rights and the potential for liability should the association overstep its rights we caution that every association consult with its legal counsel to obtain a clear understanding as to its right to approve or disapprove potential purchasers and tenants. 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. Phone: (239) 542-3148 The statute had previously expressly prohibited potential conflicts of interest even if the financial interest was disclosed or approved by the Board or the unit owners, and conflicted with Section 718.3027, F.S. You should consult an attorney for advice regarding your individual situation. The contact form sends information by non-encrypted email, which is not secure. 7 Mountain Side Mobile Estates Partnership v. Secretary of Hous. Previously, the Division only retained jurisdiction after turnover to investigate complaints against the developer related exclusively to financial issues, elections, and unit owner access to the official records. Nevertheless, nobody that I know has received the package. There are over 1 million condominium units in Florida. 718.303 (1), owners . The Board of Directors of many condominium associations takes their approval responsibility seriously, and they should. To avoid surprises, buyers request condominium associations provide a letter confirming the status of assessments. The board adopted a rule requiring the background checks, but we cant actually find anything about this in the Declaration itself. The amount of the transfer fee must be adjusted every 5 years in an amount equal to the total annual increases occurring in the. In todays age of short-term rentals and eviction moratoriums, there are many reasons for associations to wish to update their restrictions for lease terms and tenant reviews. Managers Report eNewsletter. The fee may not be more than $100 per applicant and a husband/wife or parent/dependent child are considered one applicant. 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 Many associations use a blanket term prohibiting "aggressive" dog breeds. 6. Criminal history. 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. The information you obtain at this site is not, nor is it intended to be, legal advice. Many associations make a credit report part of the approval process, and one local association went so far as to require tax returns be submitted. In that case, the purchaser was African American and established that he was denied approval because of his race. The condominium association's board of directors has just approved a large special assessment to finance the replacement of an aging heating and cooling system, and owners are not pleased, to say the least. Get an email notification whenever someone contributes to the discussion. Additionally, the federal Fair Housing Act1 (more commonly referred to as the FHA) and Floridas Fair Housing Act2 each provide numerous protections from discrimination by housing providers, including condominium associations. Before this new legislation, the only limit on rental restrictions in the Florida Statutes, which pertained to community associations, related to condominium associations; there was no such limitation for homeowners associations. 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. Annual Budget Section 718.112(2)(f)1, F.S., (SB 1966, Page 46). Why Condominium Associations Must Carefully Evaluate Their Long-Standing Tenant Approval Policies. / 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 condominium associations right to approve sales or leases is almost mythical. 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 law clarifies that a multi-condominium association may adopt a consolidated or combined Declaration for the condominiums without being required to merge the condominiums into a single condominium. Authority to approve sales or leases must be provided in the declaration of the condominium. To reign in that abuse, the 2017 legislature again amended Floridas Condominium Act to cap the fee for estoppel letters at $250. The minutes include votes on settlement parameters and include opinions of our counsel. There seems to be a common misunderstanding by the directors of many community associations in Florida as to their rights to approve and screen individuals seeking to purchase or rent homes within their communities. 2021 LEGISLATIVE UPDATE FOR FLORIDA CONDOMINIUM ASSOCIATIONS. 14. Frequently asked question about Condo & HOA Law from Florida Lawyers Goede, DeBoest & Cross: Multidisciplined Florida Attorneys. For a condominium association, the limit on rental restrictions, found in Section 718.110(13), Florida Statutes, provides as follows: 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.. Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, Adamczyk, DeBoest & Cross, PLLC. No racism, sexism or any sort of -ism Still, the Condo Association has control over the condominium and can exercise power over the tenant just as it can with residents (or prospective residents). Official Records Section 718.112(12), F.S., (SB 630, Page 5), (a) The time period an association must maintain official records of bids for work, equipment, or services to be performed has been reduced from 7 years to 1 year after receipt of the bid. of Housing and Community Affairs v. Inclusive Communities Project, Inc.3, if a housing providers resident acceptance policy has a disparate impact on a minority group, such a policy would fall under the purview of FHA prohibited practices. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship. Anyone wishing to rent a condominium must complete the Association's "Background Consent Form" and submit same to the Association for completion of a background check, at the owner's or prospective tenant's expense. (d) Construction Lien Section 718.121(2), F.S., (SB 630, Page 35). 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." / 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. 1. The law applies to all condos, apartments, and rental homes. On the other hand, a condominium is real estate. Whenever a tenant application is about to be denied, the Association must be ready to provide the specific reason for the denial, with such reason having its basis in a counsel-reviewed, tenant application policy. Senate Bill 630 went into effect on July 1, 2021. An arbitrary disapproval of a tenant or purchaser is likely to be unenforceable. The Association should be prepared to provide this explanation even if the Associations governing documents do not require the Association to do so. 16. These rules were also intended to address a growing concern that tenants are purchasing illegitimate documentation for emotional . Some declarations and bylaws for Florida communities provide associations with a right of first refusal, enabling them to accept the same terms and conditions for any good-faith lease offer that a unit-owner receives and is willing to accept. Section 718.112(2)(p), F.S., dealing with conflicts of interest, was repealed. 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 evaluation would occur at the time the application is filed. Be Nice. Courtesy Notice of Late Assessment Section 718.121(5), F.S., (SB 56, Page 12). This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. The tenant must provide the landlord 30 days' written notice, along with a copy of the official military orders or a written verification signed by the service member's commanding officer. 2. According to the suit, the associations new leasing restriction, which it apparently adopted via a simple vote of the board the directors, was never approved by all the unit-owner association members via a formal vote. That means the declaration of a condominium must be read to see if association approval is required, and if so, limitations on the associations power. 13. Be Truthful. In sum, Florida law does not allow condominium associations to discriminate against someone who is renting a unit in the condominium. The legislature was apparently aghast and shortly after the Supreme Courts decision amended Floridas Condominium Act. 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. If the Declaration of Condominium expressly provides that the Association has approval and denial authority, case law indicates that a Board has "good cause" to deny a lease based on a tenant's failure to previously honor the rules in that particular condominium association. His practice includes litigation and divorce, business law, estate planning, associations and real estate. Photo courtesy of Oleg Ivanov Any access is subject to reasonable restrictions adopted by the association. That makes it important to review any limitations on sales or rentals, especially if a buyer is purchasing and plans on renting the unit. Don't knowingly lie about anyone Division Enforcement of Developers Section 718.501(1), F.S., (SB 630, Page 54). 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 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. Notifications from this discussion will be disabled. Residents of the Crestview Towers Condominium carry their belongings as they leave their building in North Miami Beach, Florida, on July 2. each comment to let us know of abusive posts. (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. I would also recommend reviewing the associations bylaws as this document sometimes contains notice requirements which are more restrictive than the statutory requirements. T he tenant application process to a condominium association can be long, arduous, and sometimes, expensive. Q:Our election is in 20 days and the board claims to have mailed out the package last week. If the Association does have tenant approval power, whatever the reason for rejecting the tenant, the Association must be prepared to explain. Once every decade, the Florida courts issue an opinion that profoundly changes the face of condominium law. We look at the circumstances and process of how someone could be removed from a condo. A:This is a good question because the Florida Condominium Act does require that the Board keep minutes of every board meeting, and that minutes are official records that must be made available to owners when requesting access to official records. Competent legal counsel should be consulted if you have questions regarding compliance with the law. Q:Our condominium association is involved in litigation with one of our owners. 3. j. Generally, the board of directors is authorized to make rules pursuant . A recent lawsuit filed by a tenant against a Miami condominium association is claiming excessive application fees were charged, violating the Florida law. Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. For transfer purposes, spouses, a parent or parents, and any dependent children are considered one applicant. Section 718.104 (5) Florida Statutes provides that a declaration of condominium, as originally recorded or as amended, may include restrictions concerning use, occupancy and transfer of units. / SB 630 Page 12), 3. Many federal laws provide protection to people who could have been denied approval in the past. 3 Texas Dept. 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. In, Barnett and Klein v. The President of Palm Beach, a Condominium, , an owner recovered damages for tortious interference with a contractual relationship when the association denied his effort to rent relying on a rule adopted by the board instead of a limitation in the declaration. 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. What might those be? Consumer Price Index during that 5-year period. The law was amended to clarify and expand a developers right to use sales and reservation deposits placed in escrow. 4. 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. Complaints against Community Association Manage rs and Firm s can be submitted here. Changing rental rules were addressed by Floridas Supreme Court in the 2002 case of Woodside Village Condominium Association v. Jahren. 10. The new section (h) added to Section 720.306 of the Florida Statutes will also clarify that a rental prohibition or regulation that does not apply to a current title holder (because that owner did not consent to the amendment) also will not apply to a subsequent title holder following certain ownership changes. PLEASE TURN OFF YOUR CAPS LOCK. accounts, the history behind an article. However, the percentage of rental units may not exceed the FHA owner-occupancy requirements. 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 . Right to Contest Termination of Condominium Section 718.117(16), F.S., (SB 630, Page 33). 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. Emergency Powers Section 718.1265, F.S., (SB 630, Page 46). A:Florida law supports the right of a condominium association or homeowners association to review and approve prospective leases and tenants. Most people believe associations have an inherent right to approve sales or leases, but that is not the case. 5. The building, about 6 miles from Surfside, was deemed. Your message has failed. that is degrading to another person. The Association should consult with its legal counsel before utilizing certain powers provided for in the governing documents, as sometimes, the very powers articulated in the those documents may be in violation of applicable laws. 15. Please avoid obscene, vulgar, lewd, Those with disabilities are similarly protected. FCAP (Florida Community Association Professionals) is a member-based professional organization dedicated to training, equipping and advocating for Florida community association professionals including managers, service providers and community volunteer leaders. 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 association can also charge a security deposit in connection with approval of a lease, not to exceed the equivalent of one months rent, but only if the authority to do so is in the declaration or bylaws. Please try again. 8. All Rights Reserved. What happens when an association wrongfully refuses to approve a transfer? Associations often require that prospective tenants submit pages and pages of paperwork, undergo background and credit checks, and pay application fees. NOTE: Our Client Portal is Currently Undergoing Maintenance. 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. (Section 718.111(12)(c)1, F.S. The prospective owner in the latter case went to court and the judge ruled insisting on tax returns was overreaching and unenforceable. (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. As such, it is unclear how to treat a candidate running for the Board that is more than 90 days delinquent in a monetary obligation other than an assessment. To view past articles, please click Publications on our firm website. Therefore, to ascertain what approval rights the association may have regarding a prospective tenant or purchaser, the association should begin by reviewing its own governing documents. The trial court disagreed and explained the investment group bought knowing unit owners could amend the declaration at any time. My HOA requires a signed lease contract prior to the HOA background check and interview process. Impose an HOA pet weight limit for each dog. A few greedy condos, mostly in the Miami area, charged five and even ten times that amount. or anything. Board Member Term Limits Section 718.112(2)(d)2, F.S., (SB 630, Page 17). Cape Coral, FL 33904 However, what information may the Association actually rely upon in making its decision to accept or deny a prospective tenants application? Under the new Condo Board crime law, any Condo Board member that destroys an official document or record of the Condo Association "in furtherance of a crime" commits a crime. 1. 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. Board Candidate Eligibility Section 718.112(2)(d)2, F.S., (SB 1966, Page 39). 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. A homeowners association cannot evict a homeowner the same way that a landlord can evict a tenant. For more information, call us at (954) 241-2260, send an e-mail to info@themold.lawyer. 7. 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 . 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. 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. (e) Authorizes condominium associations to consult with public health officials when determining whether any portions of the condominium property are unavailable for entry or occupancy.
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