Questions regarding the content of this article may be emailed to Christopher Pope at chrispope@paveselaw.com. Provide contact information for all insurance maintained by the association. The Florida Condominium Act, Fla. Stat. 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. Q:Our election is in 20 days and the board claims to have mailed out the package last week. 1. The investment group appealed and was successful, with the appellate court ruling that the change was a deprivation of property rights. He can be reached at dpodein@dhaberlaw.com. Florida Community Association Professionals: Why Condominium Associations Must Carefully Evaluate Their Long-Standing Tenant Approval Policies Florida Today: The Fair Housing Act and Criminal . 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. In Barnett and Klein v. The President of Palm Beach, a Condominium, an owner recovered damages for tortious interference with a contractual relationship when the association denied his effort to rent relying on a rule adopted by the board instead of a limitation in the declaration. In contrast, Section 720.306(1)(h), Florida Statutes, will provide that the rental restriction will apply to a parcel owner who acquires title to the parcel after the effective date of the governing document or amendment and to a parcel ownerwho consents, individually or through a representative, to the governing document or amendment. 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. 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 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. If your association was created 50 years ago . Condominiums Rights to Approve Transfers, Rules can be changed by unit owners voting to amend the declaration. To view past articles, please click Publications on our firm website. Q:Our community has a very strict tenant screening process and my neighbor has had multiple tenants denied due to poor background checks. Among the changes made was one that restricts the right of a homeowner's association to implement rental . 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. 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. We'd love to hear eyewitness 4. In particular, the rental prohibition or regulation will not apply to an heir who acquires the title as a result of the prior owners death or where title is transferred from the prior owner to an entity affiliated with a prior owner. 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. Talk to a Lawyer 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). 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. 1. Failure to fully or truthfully compete the. 718.116(4) of the Condominium Act states: " If the association is authorized by the declaration or bylaws to approve or disapprove a proposed lease of a unit, the grounds for disapproval may include, but are not limited to, a unit owner being delinquent in the payment of an assessment at the time approval is sought." 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. 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. (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. 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). Speak to a real estate attorney! 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. 1833 Hendry Street A: Florida law supports the right of a condominium association or homeowners' association to review and approve prospective leases and tenants. 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. 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. Client Payment. Developer Use of Sales or Reservation Deposits Prior to Closing Section 718.202, F.S., (SB 630, Page 50). Addressing any flaws in the Associations tenant application process now may help to prevent or reduce litigation down the road. An arbitrary disapproval of a tenant or purchaser is likely to be unenforceable. 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 . 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. Notifications from this discussion will be disabled. For transfer purposes, spouses, a parent or parents, and any dependent children are considered one applicant. Generally, the board of directors is authorized to make rules pursuant . 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. Those with disabilities are similarly protected. Copyright 2023, Pavese Law Firm. HOA/Condo laws in Florida allow HOAs considerable discretion in approving or denying potential buyers and renters. 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. Your California Privacy Rights/Privacy Policy. The answer is more complicated than you may think. Notice of Member Meetings Section 718.112(2)(d)3, F.S., (SB 630, Page 19). 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. The Association should carefully consider its policy regarding tenant applications, specifically the criteria used by the Association in making its decisions, to ensure that valid interests are protected by such policy. The investment group argued the amendment was a violation of their property rights. The Division now retains jurisdiction to investigate complaints against developers for failure to maintain the associations official records. 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. Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, Adamczyk, DeBoest & Cross, PLLC. Visit www.gadclaw.com or ask questions about your issues for future columns, send your inquiry to: question@gadclaw.com. The tenant application process to a condominium association can be long, arduous, and sometimes, expensive. NOTE: Our Client Portal is Currently Undergoing Maintenance. (Sections 718.1255 (4) and (5), F.S. Residents of the Crestview Towers Condominium carry their belongings as they leave their building in North Miami Beach, Florida, on July 2. If the Declaration does not authorize the. (Section 718.111(12)(c)1, F.S. 2d 452 (Fla. 2002). What might those be? Require pets to be spayed or neutered. 718.101, et. Some experts have gone so far as to state an association must buy a condominium unit when it refuses to approve a sale. 11. The rule was held beyond the boards authority. If the Association does have tenant approval power, whatever the reason for rejecting the tenant, the Association must be prepared to explain. Consumer Price Index during that 5-year period. 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 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. Cape Coral, FL 33904 (b) Before changing the method of delivery for any invoice for assessments or a statement of account, the association must deliver a written notice of such change to the unit owners at least 30 days before it sends the invoice for assessments or the statement of account by the new delivery method. What happens when an association wrongfully refuses to approve a transfer? 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. 16. 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. 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. 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). In that case, the purchaser was African American and established that he was denied approval because of his race. 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 tenant was charge at total of $625 in non-refundable fees by Quantum on the Bay, which included . The investment group argued the amendment was a violation of their property rights. History of nuisance in a previous community or in the subject community. In sum, Florida law does not allow condominium associations to discriminate against someone who is renting a unit in the condominium. That case started when an investment group bought a condominium and the owners in the condominium later amended the declaration to limit rentals. FCAP (Florida Community Association Professionals) is a member-based professional organization dedicated to training, equipping and advocating for Florida community association professionals including managers, service providers and community volunteer leaders. You have permission to edit this article. (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. 2021 LEGISLATIVE UPDATE FOR FLORIDA CONDOMINIUM ASSOCIATIONS. Be Proactive. In determining the validity of a condominium association's leasing restrictions, the court in Seagate Condo. 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. Often times, these directors are disappointed to learn that Florida law and their associations governing documents are not as restrictive as they would like. However, that authority cannot be exercised unreasonably. Firstly, associations need to ensure that they meet the deadlines and procedures set for tenant reviews under their own governing documents. Florida recently passed new laws governing emotional support animals (ESA) which go into effect on July 1, 2020. 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 rule was held beyond the boards authority. Alternative Fuel Charging Stations, (a) Natural Gas Charging Stations Section 718.113(8), F.S., (SB 630, Page 30). 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. 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. 10. Fort Myers, FL 33901 Contacting us does not create an attorney-client relationship. Senate Bill 630 went into effect on July 1, 2021. There will be an exception to the rule of limited application (to successor owners or owners voting for the amendment) as to certain rental prohibitions or regulations for those restrictions that are put in place on or after July 1, 2021. 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. racist or sexually-oriented language. Fax: (239) 542-8953, 4524 Gun Club Rd. Phone: (239) 334-2195 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 An overview of florida condominium association collections of past due maintenance fees. (c) Authorizes the association to give meeting notices by electronic transmission. 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. 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. 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. 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. 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. NOTE: Our Client Portal is Currently Undergoing Maintenance. 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. On the other hand, the statute also provides that owners are not entitled to access official records which includes any attorney client privilege or attorney work product prepared in connection with a lawsuit. or anything. Florida Statute section 718.111 (11) (f) requires that the condo association maintain insurance on "all portions of the condominium property as originally installed" or as replaced in accordance with the original plans and specifications.