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. how a payment plan is approved, who (the association or its attorney) will . Notice of Intent to Foreclose Section 718.116(6)(b), F.S., (SB 56, Page 9). Condo Application Fees - What is Legal in Florida. 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. (Section 83.682, Florida Statutes) If a tenant buys a home, the tenant does not have the right to terminate a written lease early. Assessments and Statements of Account Section 718.121(4), F.S., (SB 56, Page 11). 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. 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. If your association was created 50 years ago . To avoid surprises, buyers request condominium associations provide a letter confirming the status of assessments. 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 do not include any confidential or sensitive information in a contact form, text message, or voicemail. The minutes include votes on settlement parameters and include opinions of our counsel. 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. The owner has requested to review minutes of meetings between the board and its attorney to discuss this litigation. And while the circumstances may be different, there are ways for a condominium association to evict--or rather eject--an owner. 14. A: When an attorney draws up association documents when a condo building is being built or converted, those documents can become out-of-date over time. 5. that is degrading to another person. The law was amended to clarify and expand a developers right to use sales and reservation deposits placed in escrow. Fax: (239) 332-2243, 4632 Vincennes Blvd., Suite 101 His practice includes litigation and divorce, business law, estate planning, associations and real estate. Threats of harming another Firstly, associations need to ensure that they meet the deadlines and procedures set for tenant reviews under their own governing documents. A note to the reader: This article is intended to provide general information and is not intended to be a substitute for competent legal advice. Phone: (239) 542-3148 The 2021 Florida legislative session produced several bills that made numerous changes to condominium law (Chapter 718, Florida Statutes; the Condominium Act) that will affect the operation of condominium associations across the State. Miami-Dade County Ordinance Section 11A-18.1(b) requires that the Association must: (i) provide notice within 45 days of any tenant application rejection, and (ii) state, with specificity, the reason for the rejection. Florida community associations typically have the right under their governing documents to regulate and approve leases and tenants. The 2 Midtown condo association charges tenants and buyers $550 dollars in transfer fees. The bill modifies certain provisions in the Florida Statutes that impact condominium associations and homeowners associations. By January 1, 2019, a Condominium Association in Florida with 150 or more units (not including timeshare units) must have an independent website or web-portal owned and operated solely by the Association or operated by a third party provider on behalf of the Association. A Florida condominium association or homeowners association may collect a security deposit from a prospective tenant in addition to the security deposit collected by the landlord if the association's governing documents provide the authority to do so. 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. Phone: 855-331-5100 | Fax: 1-866-462-1501. Specifically, the Florida Condominium Act and Homeowners Association Act provide that an association's official records must include a statement of the account for each owner designating the due date and amount of each assessment, the amount paid on the account, and the balance due. 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. As I indicated, the requirement to obtain an associations approval prior to selling or leasing a home or unit is deemed to be a restraint on the alienation of such real property, and as such, that restraint may only be imposed to the extent that it is reasonable. Note that notice may now also be posted on association property (i.e. To view past articles, please click Publications on our firm website. Developer Use of Sales or Reservation Deposits Prior to Closing Section 718.202, F.S., (SB 630, Page 50). The law applies to all condos, apartments, and rental homes. 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. Most people believe associations have an inherent right to approve sales or leases, but that is not the case. 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 . Fax: (561) 471-0522. 10. On the other hand, a condominium is real estate. We look at the circumstances and process of how someone could be removed from a condo. The association eventually settled the case by paying the former president $550,000 and agreeing to purchase her condominium unit. Unreasonable restraints on the alienation of property are disfavored by Florida courts. Condominiums Rights to Approve Transfers, Rules can be changed by unit owners voting to amend the declaration. T he tenant application process to a condominium association can be long, arduous, and sometimes, expensive. Fax: (239) 542-8953, 4524 Gun Club Rd. Authority to approve sales or leases must be provided in the declaration of the condominium. However, condominiums can refuse to approve a transfer when the unit owner is delinquent in amounts due to the association. However, an associations board is not necessarily free to approve or disapprove prospective purchasers and tenants merely because the authority to do so appears in the associations governing documents. 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. A condominium, in Florida, is created by the filing and recording of a Declaration of Condominium. The rule was held beyond the boards authority. Please avoid obscene, vulgar, lewd, Contacting us does not create an attorney-client relationship. 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. Your message has failed. 1. The building, about 6 miles from Surfside, was deemed. It is important for Board Members, Property Managers, and Unit Owners to be familiar with this statute when it comes to imposing Fines and Suspensions on Unit Owners. 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. In that case, the purchaser was African American and established that he was denied approval because of his race. A recent lawsuit filed by a tenant against a Miami condominium association is claiming excessive application fees were charged, violating the Florida law. There are new requirements on how an association may deliver and change its method of delivery for assessments and statements of account: (a) An invoice for assessments or a statement of account must be sent by first-class mail or electronic transmission to the unit owners email address maintained in the associations official records. Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, Adamczyk, DeBoest & Cross, PLLC. Editors note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC, respond to questions about Florida community association law. State law limits such fees to . 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. Combined Declaration of One or More Condominiums Section 718.405(5), F.S., (SB 630, Page 54). Construction Defect & Scheduling Litigation, Non-Compete / Restrictive Covenant Litigation, Trade Secrets & Unfair Competition Litigation, Commercial & Residential Real Estate Disputes, Mediation / Alternative Dispute Resolution, Tax Disputes (IRS Controversy & Litigation). However, that authority cannot be exercised unreasonably. Q:Our community has a very strict tenant screening process and my neighbor has had multiple tenants denied due to poor background checks. We can also develop the exact language that should be used for their implementation and any amendments to the governing documents, and many of us are also familiar with new online tools that help to facilitate votes of the entire membership as required for such amendments. (Section 718.111(12)(c)1, 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 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 . Consumer Price Index during that 5-year period. 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. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. 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. 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. (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. 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. 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. at 2522. In many cases, this is not a power originally vested to the HOA, but one they have created. Quorum and Amendments Section 617.0725, F.S., (SB 602, Page 16). As a preliminary matter, the Associations governing documents may not even grant the Association the power to approve or deny prospective tenants. 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. 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. (c) Authorizes the association to give meeting notices by electronic transmission. 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. j. History of nuisance in a previous community or in the subject community. Notice of Intent to Lien Section 718.121(6), F.S., (SB 56, Page 13). When an association fails to do so, the result can be an expensive education for the Board of Directors and owners. 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 rejected buyer recovered almost $200,000 in damages even though the association exercised a right of first refusal. Previously, a developer could use such funds for actual construction, but the escrowed funds may now be used for the actual costs incurred by the developer in construction and development of the condominium property. 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. The trial court disagreed and explained the investment group bought knowing unit owners could amend the declaration at any time. 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. Notice of Member Meetings Section 718.112(2)(d)3, F.S., (SB 630, Page 19). 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. 11. Share with Us. By: Christopher L. Pope, Esq., Board Certified by the Florida Bar in both Construction Law and Condominium and Planned Development Law. 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 civil rights restored; (2) the application for approval, on its face, or the conduct of the applicant, indicates an intent to act in a manner inconsistent with the associations governing documents; (3) the applicant has a history of disruptive behavior or disregard for the rights and property of others as evidenced by his conduct in other residences, social organizations or associations; and (4) the applicant has failed to provide the information required to process the application in a timely manner, or has materially misrepresented any fact or information provided in the application or screening process. 4. However, the percentage of rental units may not exceed the FHA owner-occupancy requirements. Use the 'Report' link on Criminal history. Many associations use a blanket term prohibiting "aggressive" dog breeds. 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. 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. This new law also addresses a growing concern among landlords and condo boards, wherein tenants have been wrongfully passing off their pets as Emotional Support Animals by obtaining illegitimate ESA letters and certificates online. 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. The answer is more complicated than you may think. 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. The Department of Business & Professional Regulation (DBPR) must periodically calculate the fees, rounded to the nearest dollar, and publish the adjusted amounts on its website. The contact form sends information by non-encrypted email, which is not secure. The amount of the transfer fee must be adjusted every 5 years in an amount equal to the total annual increases occurring in the. Annual Budget Section 718.112(2)(f)1, F.S., (SB 1966, Page 46). Financial resources including credit score and equity. Competent legal counsel should be consulted if you have questions regarding compliance with the law. The structural repairs had not yet begun when the condo collapsed two months later. The information you obtain at this site is not, nor is it intended to be, legal advice. (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). . Division Enforcement of Developers Section 718.501(1), F.S., (SB 630, Page 54). / 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. No owner or agent shall execute a lease with any proposed Photo courtesy of Oleg Ivanov the association may not allow access to "Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a parcel."8 The Condominium Act provides an additional statutory ground . Any access is subject to reasonable restrictions adopted by the association. community association leasing restrictions, Miami Herald Real Estate Column by Christyne Santisteban: Growing Condo Association Budgets Require Deft Touch by Directors, Property Managers, Community Associations Institutes Condo Safety Initiatives Recognized with Prestigious Public Affairs Council Award, Herald Column by Gary Mars: National Media Focuses on Impact of Floridas New Condo Safety Law on Association Budgets. An April letter from the president of the doomed Florida building's condo board association reportedly warned the residents that the "observable damage such as in the garage" had gotten . 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. 9. Fort Myers, FL 33901 Courtesy Notice of Late Assessment Section 718.121(5), F.S., (SB 56, Page 12). Attorney at Law at Dania S. Fernandez and Associates, P.A. The fee may not be more than $100 per applicant and a husband/wife or parent/dependent child are considered one applicant. 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. 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. 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. / SB 630, Pages 4146. 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 information provided herein is for informational purposes only and should not be construed as legal advice. Those letters are known as estoppel letters for years, most associations charged $100 for an estoppel letter. 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. Your HOA . A: No. While this language closely mirrors the language found in Section 718.110(13), Florida Statutes, there are certain differences. 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.. It is dangerous for Associations to deny tenant applications without having a specific, justifiable basis, as such a rejection may open the Association up to potential liability. HOA docs basically state that I can't rent rooms (only the entire house), lease forms must be approved by HOA, my lease must require tenants to follow HOA docs, my lease must give HOA power to terminate lease for failure to observe HOA docs, and that written permission by HOA is required to lease lots (which approval shall not be unreasonably . 718.303 (1), owners . 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. NOTE: Our Client Portal is Currently Undergoing Maintenance. Frequently asked question about Condo & HOA Law from Florida Lawyers Goede, DeBoest & Cross: Multidisciplined Florida Attorneys. This protective measure is deemed to enable the association to exercise some level of control as to the individuals that may reside in a community without unreasonably limiting the owners right to sell or lease the property. 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. The reason for disapproval must also meet the requirements of statutes. 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. Emergency Powers Section 718.1265, F.S., (SB 630, Page 46). The statute does not limit estoppel fees to condos with such authority in their governing documents so every Florida condominium can charge the fee unless its governing documents prohibit it. The contact form sends information by non-encrypted email, which is not secure. Board Candidate Eligibility Section 718.112(2)(d)2, F.S., (SB 1966, Page 39). of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S.Ct. 2022 FCAP - Florida Community Association Professionals, LLC. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. 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. When you apply to rent a house: the only approval you need is from the homeowner. (Section 718.1255(4), F.S. 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. . of Hous. Phone: (561) 471-1366 He can be reached at jepstein@dhaberlaw.com. 7. and Urban Dev. 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. Condominium Association, Inc. Rules & Regulations and the signature(s) below authorize Sawgrass Villas . Provide contact information for all insurance maintained by the association. 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. 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. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship. 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. 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. / SB 630 Page 12), 3. 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. The law has been clarified and expressly provides that the provisions in the Condominium Act (Chapter 718) will prevail in any conflict with the provisions governing the Florida Not for Profit Corporation Act (Chapter 617). William G. Morris is the principal of William G. Morris, P.A.