History of nuisance in a previous community or in the subject community. Rules can be changed by unit owners voting to amend the declaration. The annual budget for condominium associations must be proposed to unit owners and adopted at least 14 days before the beginning of the fiscal year. The hiring of an attorney is a decision that should not be based solely on advertisements or this column. Instead, the prohibition or regulation will only apply once the heir or affiliated entity transfers title to another party. The law clarifies that only service on the Board of a condominium association that occurs on or after July 1, 2018, may be used when calculating a Board members term limit of 8 consecutive years. 10. On June 16, 2021, Governor DeSantis signed Florida SB 630, which will become effective on July 1, 2021. The purpose for an Association to require a security deposit from a renter is to protect against damages to the common elements or association property. The bill modifies certain provisions in the Florida Statutes that impact condominium associations and homeowners' associations. 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. . This requires a legal opinion and is very fact specific based on the actual governing documents in your case. 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. There are over 1 million condominium units in Florida. Condominiums must apply approval procedures with an even hand. and Urban Dev., 56 F.3d 1243 (10th Cir. The rule was held beyond the boards authority. Condo Application Fees - What is Legal in Florida. The trial court disagreed and explained the investment group bought knowing unit owners could amend the declaration at any time. Don't knowingly lie about anyone 17. For more information, call us at (954) 241-2260, send an e-mail to info@themold.lawyer. In this situation, the rule may be invalid and the Association should amend the Declaration to include these lease approval requirements in the Declaration itself. 1. Those with disabilities are similarly protected. 1. 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. Annual Budget Section 718.112(2)(f)1, F.S., (SB 1966, Page 46). accounts, the history behind an article. West Palm Beach, FL 33415 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. 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. 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. The law prohibits the use of the escrow funds for marketing or promotional purposes, loan fees and costs, principal and interest on loans, attorney fees, accounting fees, or insurance costs. 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. 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 . 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 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. Some governing documents give the Board of Directors plenary power to adopt, modify or otherwise change use restrictions. He can be reached at dpodein@dhaberlaw.com. 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. 1995); U.S. v. Weiss, 847 F. Supp. However, what information may the Association actually rely upon in making its decision to accept or deny a prospective tenants application? To view past articles, please click Publications on our firm website. The legislature was apparently aghast and shortly after the Supreme Courts decision amended Floridas Condominium Act. Senate Bill 630 contains many changes to Chapters 718 and 720, Florida Statutes, which govern condominium and homeowners' associations, respectively. The. 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 . 2022 FCAP - Florida Community Association Professionals, LLC. My HOA requires a signed lease contract prior to the HOA background check and interview process. 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. Assessments and Statements of Account Section 718.121(4), F.S., (SB 56, Page 11). 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. / SB 630, Page 40), 12. A few greedy condos, mostly in the Miami area, charged five and even ten times that amount. You should consult an attorney for advice regarding your individual situation. 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. A recent lawsuit filed by a tenant against a Miami condominium association is claiming excessive application fees were charged, violating the Florida law. Please visit our website at. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. 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. 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. 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. When you apply to rent a house: the only approval you need is from the homeowner. Keep it Clean. To avoid surprises, buyers request condominium associations provide a letter confirming the status of assessments. The 2 Midtown condo association charges tenants and buyers $550 dollars in transfer fees. Developer Use of Sales or Reservation Deposits Prior to Closing Section 718.202, F.S., (SB 630, Page 50). In sum, Florida law does not allow condominium associations to discriminate against someone who is renting a unit in the condominium. at 2522. 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. These rules were also intended to address a growing concern that tenants are purchasing illegitimate documentation for emotional . 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. 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. 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. The Board of Directors of many condominium associations takes their approval responsibility seriously, and they should. An arbitrary disapproval of a tenant or purchaser is likely to be unenforceable. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law. The investment group argued the amendment was a violation of their property rights. The Fair Housing Act includes familial status (children) as a protected class. As a preliminary matter, the Associations governing documents may not even grant the Association the power to approve or deny prospective tenants. His practice includes litigation and divorce, business law, estate planning, associations and real estate. Addressing any flaws in the Associations tenant application process now may help to prevent or reduce litigation down the road. 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. 5. Q:Our community has a very strict tenant screening process and my neighbor has had multiple tenants denied due to poor background checks. 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. Impose an HOA pet weight limit for each dog. A condominium, in Florida, is created by the filing and recording of a Declaration of Condominium. Be Proactive. Condominiums Rights to Approve Transfers, Rules can be changed by unit owners voting to amend the declaration. 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. Basically, an association may disapprove a lease or prospective tenant, if the basis for the disapproval is reasonable and non-discriminatory. 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. Insurance Subrogation Section 627.714(4), F.S., (SB 630, Page 5). The condominium association may establish a maximum number of rental units within the project. Speak to a real estate attorney! Florida Community Association Professionals: Why Condominium Associations Must Carefully Evaluate Their Long-Standing Tenant Approval Policies Florida Today: The Fair Housing Act and Criminal . (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. We look at the circumstances and process of how someone could be removed from a condo. 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 . And while the circumstances may be different, there are ways for a condominium association to evict--or rather eject--an owner. In many cases, this is not a power originally vested to the HOA, but one they have created. 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. On June 14, 2021, the Florida Legislature sent Senate Bill 630 to Governor DeSantis to be signed into law. 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. 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. 16. A:Florida law supports the right of a condominium association or homeowners association to review and approve prospective leases and tenants. Use the 'Report' link on The tenant was charge at total of $625 in non-refundable fees by Quantum on the Bay, which included . Ownership of Condominium Website The Florida Condominium Act, Fla. Stat. 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. 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. Courtesy Notice of Late Assessment Section 718.121(5), F.S., (SB 56, Page 12). 7. Again, the restrictions will not apply to rental restrictions that are in place prior to July 1, 2021. Unreasonable restraints on the alienation of property are disfavored by Florida courts. Don't Threaten. 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. You may mail the co mplaint forms to the following addre ss: Division of Florida Condominiums, Timeshares and Mobile Homes 2601 Blair Stone Road, Tallahassee, Florida 32399-1030. The building, about 6 miles from Surfside, was deemed. For transfer purposes, spouses, a parent or parents, and any dependent children are considered one applicant. The installation, repair, or maintenance of an electric vehicle charging station or a natural gas fuel station under this subsection of the statute does not constitute a material alteration or substantial addition to the common elements or association property. 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. 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. 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. / 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. Please contact the firm for more information. 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. In Florida, as opposed to many other states, HOAs and condo associations have a good amount of say in approving potential buyers and renters. 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. That reduced the fees charged by the greedy, but almost every other condominium association quickly increased their estoppel fee to $250. The unit owner is responsible for the cost for the supply and storage of the natural gas fuel station. Division Enforcement of Developers Section 718.501(1), F.S., (SB 630, Page 54). Fort Myers, FL 33901 Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, Adamczyk, DeBoest & Cross, PLLC. 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. 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. Get an email notification whenever someone contributes to the discussion. 6 Texas Dept. 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). The trial court disagreed and explained the investment group bought knowing unit owners could amend the declaration at any time. Editors note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC, respond to questions about Florida community association law. As of this writing, Senate Bill 1966 has not yet been presented to the Governor. 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. 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. When an association fails to do so, the result can be an expensive education for the Board of Directors and owners. 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. 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. 718.101, et. 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 law applies to all condos, apartments, and rental homes. 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. Landlords, property managers, Association managers, and Association board members need to be aware of recent changes to the law taking effect in Florida July 1, 2016 governing rental applications for active duty military servicemembers. While this language closely mirrors the language found in Section 718.110(13), Florida Statutes, there are certain differences. Is there enough time to conduct the election? Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship. Mr. Pope is 1 of only 2 attorneys in Florida that is Florida Bar Board Certified in both Construction Law and Condominium and Planned Development Law. 7 Mountain Side Mobile Estates Partnership v. Secretary of Hous. 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. 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. 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. Those letters are known as estoppel letters for years, most associations charged $100 for an estoppel letter. 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. Q:Our election is in 20 days and the board claims to have mailed out the package last week. from U.S. Dept. Combined Declaration of One or More Condominiums Section 718.405(5), F.S., (SB 630, Page 54). 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. Suite 203 Among the changes made was one that restricts the right of a homeowner's association to implement rental . The fee may not be more than $100 per applicant and a husband/wife or parent/dependent child are considered one applicant. (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. 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 . j. (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). 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.