He can be reached at jepstein@dhaberlaw.com. 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. FCAP Member Advantage eNewsletter If the association has only sent the package to the printer, for example, and not actually postmarked the package, there is still time and the election would not be overturned provided the package is timely mailed. 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. 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. The association eventually settled the case by paying the former president $550,000 and agreeing to purchase her condominium unit. If the Bylaws do not specify a timeframe for written notice of a meeting other than an annual meeting, notice must be provided at least 14 continuous days before the meeting. The bill modifies certain provisions in the Florida Statutes that impact condominium associations and homeowners' associations. He concentrates his practice areas on business litigation, condominium and community association law, construction law, and real estate litigation. 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 rule was held beyond the boards authority. Fax: (239) 332-2243, 4632 Vincennes Blvd., Suite 101 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. No owner or agent shall execute a lease with any proposed One measure that the courts have determined to be reasonable when disapproving a potential sale of a home or unit is the right of first refusal, which would require an association or its designated representative to step in and consummate the sale or lease of the potential purchaser or tenant who is disapproved. Unreasonable restraints on the alienation of property are disfavored by Florida courts. 1. You should consult an attorney for advice regarding your individual situation. For instance, you might have to keep bicycles or kayaks out of view, behind a fence. The investment group appealed and was successful, with the appellate court ruling that the change was a deprivation of property rights. The HOA application states that the screening process is said to take up to 30 days. In Florida, as opposed to many other states, HOAs and condo associations have a good amount of say in approving potential buyers and renters. 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. (Sections 718.1255 (4) and (5), F.S. 14. A member of the Board will conduct an interview with the purchaser or tenant and issue a Certificate of Approval, if applicable. 3. 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. 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. 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. Combined Declaration of One or More Condominiums Section 718.405(5), F.S., (SB 630, Page 54). HOAs sometimes limit what types of equipment can be stored outside your home. 718.303 (1), owners . (Section 718.111(12)(a)11d, F.S. at 2522. 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. Basically, an association may disapprove a lease or prospective tenant, if the basis for the disapproval is reasonable and non-discriminatory. Residents of the Crestview Towers Condominium carry their belongings as they leave their building in North Miami Beach, Florida, on July 2. The. Despite this recent expansion of the FHAs reach, Associations retain the discretion to reject tenant applications for a variety of reasons. Once every decade, the Florida courts issue an opinion that profoundly changes the face of condominium law. 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. Your Florida Condominium Association Hurricane Preparedness Plan ; Your Florida Condominium Board Member Electronic Voting and Communication Policy ; Florida Condominium Association Board Election Procedures: Florida Statute 718.112(2)(d) and Florida Administrative Code (F.A.C.) the rejected buyer recovered almost $200,000 in damages even though the association exercised a right of first refusal. Rule 61B-23 ; Florida Condominium Association Board Members Voting . Among the changes made was one that restricts the right of a homeowner's association to implement rental . 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). (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. 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. Condominiums are on a slippery slope when exercising approval authority. Complaints against Community Association Manage rs and Firm s can be submitted here. 2507 (2015). 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. 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. Some of the most common HOA dog restrictions, though, include the following: Limit the number of pets per household. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship. (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. All Rights Reserved. 1833 Hendry Street Commissioners of Broward County, Fla., passed an ordinance in September requiring HOAs to provide written notice to rejected applicants detailing the reason for the rejection. Use the 'Report' link on Condominium Act. 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. 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. Annual Budget Section 718.112(2)(f)1, F.S., (SB 1966, Page 46). / 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. 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. Only approve select dog breeds. The information in this column is general in nature and not intended as legal advice. 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. The contact form sends information by non-encrypted email, which is not secure. 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. The deposit must not exceed the equivalent of one month's rent and be placed into an escrow account which the Association is responsible for maintaining. 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. A: No. Court cases have held that when an association has the unfettered right to disapprove a sale, such unlimited authority can be unenforceable as an unreasonable restriction on the ability of an owner to sell. 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. The bill modifies certain provisions in the Florida Statutes that impact condominium associations and homeowners associations. 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. Board Member Term Limits Section 718.112(2)(d)2, F.S., (SB 630, Page 17). Again, the restrictions will not apply to rental restrictions that are in place prior to July 1, 2021. Your message has failed. 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. 2d 452 (Fla. 2002). 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. 10. 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. Notice of Member Meetings Section 718.112(2)(d)3, F.S., (SB 630, Page 19). from U.S. Dept. 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. / 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. Illegal Discriminatory Restrictions Section 718.112(1)(c), F.S., (SB 630, Page 16). of Housing and Community Affairs, 135 S.Ct. T he tenant application process to a condominium association can be long, arduous, and sometimes, expensive. 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. Renewal of lease or sublease with the same tenant cannot be charged a fee. Impose an HOA pet weight limit for each dog. 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. 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. While this language closely mirrors the language found in Section 718.110(13), Florida Statutes, there are certain differences. NOTE: Our Client Portal is Currently Undergoing Maintenance. Condo Application Fees - What is Legal in Florida. The fee may not be more than $100 per applicant and a husband/wife or parent/dependent child are considered one applicant. 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. (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. Please try again. Jacob Epstein is an associate with the Miami-based law firm of Haber Slade, P.A. 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. An overview of florida condominium association collections of past due maintenance fees. Is this a valid protocol? Many associations use a blanket term prohibiting "aggressive" dog breeds. Alternative Fuel Charging Stations, (a) Natural Gas Charging Stations Section 718.113(8), F.S., (SB 630, Page 30). That case started when an investment group bought a condominium and the owners in the condominium later amended the declaration to limit rentals. David T. Podein is a senior associate at Haber Slade. how a payment plan is approved, who (the association or its attorney) will . Cape Coral, FL 33904 As of this writing, Senate Bill 1966 has not yet been presented to the Governor. Be Nice. The association is required to mail the package to the last address provided to the Association. William G. Morris is the principal of William G. Morris, P.A. A few greedy condos, mostly in the Miami area, charged five and even ten times that amount. 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.. We look at the circumstances and process of how someone could be removed from a condo. 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. Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. We pride ourselves of our level of commitment to our clients. 17. Developer Use of Sales or Reservation Deposits Prior to Closing Section 718.202, F.S., (SB 630, Page 50). 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. Those letters are known as estoppel letters for years, most associations charged $100 for an estoppel letter. Conflicts of Interest Section 718.112(2)(p), F.S., (SB 630, Page 29). that is degrading to another person. 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. 5 See Mem. When an association fails to do so, the result can be an expensive education for the Board of Directors and owners. (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. 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. 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. A vote of the parcel owners is only taken when a declaration is amended. Reliance on outdated governing documents to reject undesirable tenants could lead to liability under the FHA and/or violation of local ordinances. The condominium association may establish a maximum number of rental units within the project. On June 16, 2021, Governor DeSantis signed Florida SB 630, which will become effective on July 1, 2021. Florida community associations typically have the right under their governing documents to regulate and approve leases and tenants. There are over 1 million condominium units in Florida. 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. 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 . HOME; . The owner has requested to review minutes of meetings between the board and its attorney to discuss this litigation. By: Christopher L. Pope, Esq., Board Certified by the Florida Bar in both Construction Law and Condominium and Planned Development Law. 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. Q:Our election is in 20 days and the board claims to have mailed out the package last week. 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 . 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. This new statutory provision will be reflected in a new subsection (h), to be added to Section 720.306 of the Florida Statutes. Frequently asked question about Condo & HOA Law from Florida Lawyers Goede, DeBoest & Cross: Multidisciplined Florida Attorneys. 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. 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. 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. Notice of Intent to Lien Section 718.121(6), F.S., (SB 56, Page 13). However, that authority cannot be exercised unreasonably. 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 fee may not be more than $100 per applicant and a husband/wife or parent/dependent child are considered one applicant. 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. Q:Our condominium association is involved in litigation with one of our owners. We offer legal assistance in all matters of condominium association law, homeowners and community association law, real estate litigations and transactions, residential and commercial closings, and insurance law. This requires a legal opinion and is very fact specific based on the actual governing documents in your case. 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. Authority to approve sales or leases must be provided in the declaration of the condominium. Some experts have gone so far as to state an association must buy a condominium unit when it refuses to approve a sale. . person will not be tolerated. Your California Privacy Rights/Privacy Policy. (1) If a landlord requires a prospective tenant to complete a rental application before residing in a rental unit, the landlord must complete processing of a rental application submitted by a prospective tenant who is a servicemember, as defined in s. 250.01, within 7 days after submission and must, within that 7-day period, notify the The Division now retains jurisdiction to investigate complaints against developers for failure to maintain the associations official records. Financial resources including credit score and equity. 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. Ombudsmans Office Section 718.5014, F.S., (SB 630, Page 65). 5. 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. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. The principles relating to formation, management, powers, and operation, as set forth in the Condominium Act, are often very similar to the analogous principles of the HAA. A recent lawsuit filed by a tenant against a Miami condominium association is claiming excessive application fees were charged, violating the Florida law. He can be reached at dpodein@dhaberlaw.com. The board adopted a rule requiring the background checks, but we cant actually find anything about this in the Declaration itself. Firstly, associations need to ensure that they meet the deadlines and procedures set for tenant reviews under their own governing documents. When someone buys a condominium, the buyer inherits liability for assessments unpaid by the prior owner and those coming due after the buyer becomes the owner. 5. Many federal laws provide protection to people who could have been denied approval in the past. (a) Amends Section 718.1265(1), F.S., to extend a condominium associations Board of Directors emergency authority to apply its response to injury and to an anticipated declared state of emergency. 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. 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). The contact form sends information by non-encrypted email, which is not secure. Failure to fully or truthfully compete the. ), (b) The statute now provides that arbitration is binding on the parties if all parties agree to be bound in writing. 4. Florida laws guarantee these rights to associations, but The Fair Housing Act still applies in regard to race, religion, age, etc. and Urban Dev., 56 F.3d 1243 (10th Cir. The structural repairs had not yet begun when the condo collapsed two months later. The investment group appealed and was successful, with the appellate court ruling that the change was a deprivation of property rights. . The trial court disagreed and explained the investment group bought knowing unit owners could amend the declaration at any time. On the other hand, a condominium is real estate. To view past articles, please click Publications on our firm website. Right to Contest Termination of Condominium Section 718.117(16), F.S., (SB 630, Page 33). 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 . Please avoid obscene, vulgar, lewd, To avoid surprises, buyers request condominium associations provide a letter confirming the status of assessments. 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. (d) Construction Lien Section 718.121(2), F.S., (SB 630, Page 35). 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. 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 .