What happens when an association wrongfully refuses to approve a transfer? 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. And while the circumstances may be different, there are ways for a condominium association to evict--or rather eject--an owner. 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. Fort Myers, FL 33901 person will not be tolerated. The rule was held beyond the boards authority. It is important to note that an association or Tampa condo association management company may not require prospective tenants to be "vetted" or approved . 7. They must act reasonably. Questions regarding the content of this article may be emailed to Christopher Pope at chrispope@paveselaw.com. As a preliminary matter, the Associations governing documents may not even grant the Association the power to approve or deny prospective tenants. 1995); U.S. v. Weiss, 847 F. Supp. NOTE: Our Client Portal is Currently Undergoing Maintenance. In that case, the purchaser was African American and established that he was denied approval because of his race. My HOA requires a signed lease contract prior to the HOA background check and interview process. Please contact the firm for more information. The board adopted a rule requiring the background checks, but we cant actually find anything about this in the Declaration itself. Militzok & Associates are toxic black mold attorneys who are proud to represent individuals and families throughout the State of Florida who are suffering injuries from mold exposure, musty smells and other types of indoor air quality issues. and Urban Dev., 56 F.3d 1243 (10th Cir. / 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 information provided herein is for informational purposes only and should not be construed as legal advice. FCAP Member Advantage eNewsletter 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. It is unclear what is meant by the reference to an owner who consents to the governing document as no vote of the parcel owners is taken at the time a declaration (the governing document) is first adopted. 1. 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. . 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. Rules can be changed by unit owners voting to amend the declaration. 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 associations can apply the screening process to deny buyers and renters, the decision cannot be discriminatory or violate the Fair Housing Act. 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. 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. Changing rental rules were addressed by Floridas Supreme Court in the 2002 case of, Woodside Village Condominium Association v. Jahren. Such is the case in Woodside Village Condominium Association, Inc. v. Jahren, 806 So. The bill modifies certain provisions in the Florida Statutes that impact condominium associations and homeowners associations. History of nuisance in a previous community or in the subject community. 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. 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. This is different from approvals and rejections of prospective tenants, which should always be conducted under the careful guidance of qualified professionals to help avoid any potential legal and financial liabilities. 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. 11. 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. on Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs, FHEO-2013-01 (April 25, 2013). 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). Those letters are known as estoppel letters for years, most associations charged $100 for an estoppel letter. 3. 5 See Mem. The owner has requested to review minutes of meetings between the board and its attorney to discuss this litigation. The investment group appealed and was successful, with the appellate court ruling that the change was a deprivation of property rights. 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. All Rights Reserved. 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. 2. 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. 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. An overview of florida condominium association collections of past due maintenance fees. However, election and recall disputes are not eligible for pre-suit mediation and such disputes must be arbitrated by the Division or filed in a court of law. 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. Provide contact information for all insurance maintained by the association. In other words, the association must have the express authority to deny transfers of title, and the restrictions on such sales must be reasonable. 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 . Despite this recent expansion of the FHAs reach, Associations retain the discretion to reject tenant applications for a variety of reasons. The statute recognizes the importance of maintaining a community in multi-unit housing, but confirms the Associations power to regulate transfers must be accepted by the owners before it can be exercised. To reign in that abuse, the 2017 legislature again amended Floridas Condominium Act to cap the fee for estoppel letters at $250. The statute does not actually provide that minutes concerning a board meeting with counsel are exempt, but I would advise my clients to protect those minutes until the litigation is resolved. 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. 247 Tamiami Trail South, Suite 201, Venice, FL 34285 P (941) 955-9991 F (941) 484-9992 LAKEWOOD RANCH 8130 Main Street, Suite 206, Lakewood Ranch, FL 34202 P (941) 907-9022 F (941) 907-9024 Did you find this real estate law content useful, but need actual legal counsel? (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. Notice of Intent to Foreclose Section 718.116(6)(b), F.S., (SB 56, Page 9). Firstly, associations need to ensure that they meet the deadlines and procedures set for tenant reviews under their own governing documents. Ownership of Condominium Website The investment group argued the amendment was a violation of their property rights. 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. Conflicts of Interest Section 718.112(2)(p), F.S., (SB 630, Page 29). The. Only approve select dog breeds. 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. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S.Ct. For transfer purposes, spouses, a parent or parents, and any dependent children are considered one applicant. 718.101, et. The period of time the condominium association must wait prior to foreclosing a claim of lien has been increased from 30 days to 45 days after the association gives written notice to the unit owner of its intention to foreclose the claim of lien. or anything. 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 . Condominium Act. (Section 83.682, Florida Statutes) If a tenant buys a home, the tenant does not have the right to terminate a written lease early. 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. David T. Podein is a senior associate at Haber Slade. HOA/Condo laws in Florida allow HOAs considerable discretion in approving or denying potential buyers and renters. Some of the most common HOA dog restrictions, though, include the following: Limit the number of pets per household. If the Declaration does not authorize the. Note: Be wary of using credit history as a ground for disapproval. Section 627.714(4), F.S., has been amended to provide that a condominium unit owners insurance policy may not provide subrogation rights against the association operating the condominium in which the property is located, if the associations insurance policy does not provide a subrogation right against the unit owners. Residents of the Crestview Towers Condominium carry their belongings as they leave their building in North Miami Beach, Florida, on July 2. Florida recently passed new laws governing emotional support animals (ESA) which go into effect on July 1, 2020. / 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. Be Proactive. As a result, HOA governing documents or amendments that were recorded prior to July 1, 2021, and which contained prohibitions or regulations as to rental agreements, remain binding as to all owners, regardless of the nature of those prohibitions or regulations. 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: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. A condominium associations right to approve sales or leases is almost mythical. Some governing documents give the Board of Directors plenary power to adopt, modify or otherwise change use restrictions. 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. Be Truthful. Florida laws guarantee these rights to associations, but The Fair Housing Act still applies in regard to race, religion, age, etc. Q:Our condominium association is involved in litigation with one of our owners. 4. 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. Editors note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC, respond to questions about Florida community association law. 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. 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 . When you apply to rent a condo: you'll need to get approved first by the landlord and then by the building's association (also known as homeowners association and condo association). 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. Courtesy Notice of Late Assessment Section 718.121(5), F.S., (SB 56, Page 12). / 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. 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. 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. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship. Don't knowingly lie about anyone that is degrading to another person. 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. may be leased or rented without the approval of the Association. (Sections 718.1255 (4) and (5), F.S. (Section 718.111(12)(a)11d, F.S. 1833 Hendry Street The legislature was apparently aghast and shortly after the Supreme Courts decision amended Floridas Condominium Act. 1. 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. 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. 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. 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. 9. 2. Financial resources including credit score and equity. Documents provided to NPR show the board approved seeking a $15 million line of credit on April 13, 2021. The notice must specify the amount owed and allow the unit owner at least 30 days to pay the past due assessments without paying additional attorney fees. This means a person is no longer ineligible to be a candidate because they are delinquent on fines, fees, or any other monetary obligation other than assessments. Both approvals are required to lease a condo in Miami. 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. Q:Our election is in 20 days and the board claims to have mailed out the package last week. Is this a valid protocol? 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. 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. Fax: (239) 542-8953, 4524 Gun Club Rd. 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. The period of time a unit owner has to pay a monetary obligation is increased from 30 days to 45 days after receiving an associations notice of intent to record a claim of lien. 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. 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 member of the Board will conduct an interview with the purchaser or tenant and issue a Certificate of Approval, if applicable. 6. Complaints against Community Association Manage rs and Firm s can be submitted here. If your association was created 50 years ago . Speak to a real estate attorney! 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. 4. 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). It's one of many South Florida condo associations ripping off consumers. These new laws clarify how residents of Florida can properly qualify for an emotional support animal and affirm the special rights ESA owners have. 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. However, that authority cannot be exercised unreasonably. 2507 (2015). 819 (D. Nev. 1994). 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. (Section 718.111(12)(c)1, F.S. 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. When a condominium association unreasonably denies approval of a lease or sale, the association can be subjected to a claim for damages and board members might even be personally liable, notwithstanding substantial protection for condominium board members found in Floridas Condominium Act and Not-For-Profit Corporations Act. HOAs sometimes limit what types of equipment can be stored outside your home. 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. Senate Bill 630 went into effect on July 1, 2021. 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. However, some association boards of directors are under the misconception that they can easily develop and implement new leasing restrictions via a board vote, and that they have the authority to approve or reject prospective tenants as they please without facing any scrutiny of their decisions. First, Florida Statutes section 720.3055 requires the homeowners association to obtain competitive bids for any contract for the provision of services requiring payment that exceeds 10 percent of . The 2 Midtown condo association charges tenants and buyers $550 dollars in transfer fees. 2021 LEGISLATIVE UPDATE FOR FLORIDA CONDOMINIUM ASSOCIATIONS. Transfer Fees/Security Deposits Section 718.112(2)(i), F.S., (SB 630 Page 25), The maximum permissible transfer fee has been increased from $100 to $150. 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.