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It is important to note that an association or Tampa condo association management company may not require prospective tenants to be "vetted" or approved . Notifications from this discussion will be disabled. on Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs, FHEO-2013-01 (April 25, 2013). 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. 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. This new statutory provision will be reflected in a new subsection (h), to be added to Section 720.306 of the Florida Statutes. 1. (Section 718.1255(4), F.S. (b) Authorizes the Board to conduct Board meetings, committee meetings, membership meetings, and elections, in whole or in part, by telephone, real-time videoconferencing, or similar real-time electronic or video communication. In Florida, as opposed to many other states, HOAs and condo associations have a good amount of say in approving potential buyers and renters. All Rights Reserved. Many associations use a blanket term prohibiting "aggressive" dog breeds. A member of the Board will conduct an interview with the purchaser or tenant and issue a Certificate of Approval, if applicable. That did not retroactively protect the investor group in the Jahren case, but protects owners now. 2. 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. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. 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. 6 Texas Dept. each comment to let us know of abusive posts. Under the Courts decision in Texas Dept. Require pets to be spayed or neutered. Florida Community Association Professionals: Why Condominium Associations Must Carefully Evaluate Their Long-Standing Tenant Approval Policies Florida Today: The Fair Housing Act and Criminal . 10. Rather, such a decision may be left up solely to the unit owner/landlord. Phone: (239) 542-3148 By: Christopher L. Pope, Esq., Board Certified by the Florida Bar in both Construction Law and Condominium and Planned Development Law. Serious problems may lead the landlord to seek an eviction without giving the tenant an . 5. 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. Keep it Clean. In that case, the purchaser was African American and established that he was denied approval because of his race. Tenant Approval Procedures Some HOA's are placing themselves in a position to actually screen the tenants that a non-occupant owner selects to rent. Fax: (561) 471-0522. You have permission to edit this article. Official Records Section 718.111(12)17, F.S., (SB 56, Page 6). Some of the most common HOA dog restrictions, though, include the following: Limit the number of pets per household. 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. Don't knowingly lie about anyone Despite this recent expansion of the FHAs reach, Associations retain the discretion to reject tenant applications for a variety of reasons. of Hous. Is this a valid protocol? / 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. / SB 630 Page 12), 3. Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, Adamczyk, DeBoest & Cross, PLLC. On June 14, 2021, the Florida Legislature sent Senate Bill 630 to Governor DeSantis to be signed into law. 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. Condominium associations only have the authority to impose this additional security deposit requirement on a tenant if the authority is so given in the Declaration. William G. Morris is the principal of William G. Morris, P.A. 5 See Mem. History of nuisance in a previous community or in the subject community. 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. The affirmative acknowledgments of unit owners related to any change in the method of delivery for assessments must be maintained by the association as an official record, but such record is not accessible to other unit owners as an official record. Managers Report eNewsletter. 11. 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. 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. 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 . A condominium associations right to approve sales or leases is almost mythical. 6. Condominium Association, Inc. Rules & Regulations and the signature(s) below authorize Sawgrass Villas . Notice of Intent to Foreclose Section 718.116(6)(b), F.S., (SB 56, Page 9). 1. 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). Note that notice may now also be posted on association property (i.e. The evaluation would occur at the time the application is filed. West Palm Beach, FL 33415 The answer is more complicated than you may think. In Barnett and Klein v. The President of Palm Beach, a Condominium, an owner recovered damages for tortious interference with a contractual relationship when the association denied his effort to rent relying on a rule adopted by the board instead of a limitation in the declaration. 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 condominium association is involved in litigation with one of our owners. 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. The tenant was charge at total of $625 in non-refundable fees by Quantum on the Bay, which included . 7 Mountain Side Mobile Estates Partnership v. Secretary of Hous. 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. The contact form sends information by non-encrypted email, which is not secure. 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 structural repairs had not yet begun when the condo collapsed two months later. Quorum and Amendments Section 617.0725, F.S., (SB 602, Page 16). 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. Assessments and Statements of Account Section 718.121(4), F.S., (SB 56, Page 11). The unit owner is responsible for the cost for the supply and storage of the natural gas fuel station. Again, the restrictions will not apply to rental restrictions that are in place prior to July 1, 2021. Often times, these directors are disappointed to learn that Florida law and their associations governing documents are not as restrictive as they would like. Be Proactive. Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. (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 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. Financial resources including credit score and equity. He is a partner and an experienced construction and real estate attorney with the Pavese Law Firm, 1833 Hendry Street, Fort Myers, FL 33901; Telephone: (239) 334-2195; Fax: (239) 332-2243. 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. (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 Once every decade, the Florida courts issue an opinion that profoundly changes the face of condominium law. 3 Texas Dept. The owner has requested to review minutes of meetings between the board and its attorney to discuss this litigation. Generally, the board of directors is authorized to make rules pursuant . If the Association does have tenant approval power, whatever the reason for rejecting the tenant, the Association must be prepared to explain. 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. 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. (Sections 718.1255 (4) and (5), F.S. That means the declaration of a condominium must be read to see if association approval is required, and if so, limitations on the associations power. 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. Basically, an association may disapprove a lease or prospective tenant, if the basis for the disapproval is reasonable and non-discriminatory. 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. 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. Board Recalls Section 718.112(2)(j(4), F.S., (SB 630, Page 28). 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. 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. 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. Most people believe associations have an inherent right to approve sales or leases, but that is not the case. Condominium Act. 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. Combined Declaration of One or More Condominiums Section 718.405(5), F.S., (SB 630, Page 54). The 2 Midtown condo association charges tenants and buyers $550 dollars in transfer fees. Be Nice. The statute was amended to permit a unit owner to install a natural gas fuel station, subject to the same requirements as a unit owner installing an electric vehicle charging station. I recently listed my townhome for rent and I am currently waiting on the results of the tenant screening for my potential renter. 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. Get an email notification whenever someone contributes to the discussion. 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. 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. While this language closely mirrors the language found in Section 718.110(13), Florida Statutes, there are certain differences. In other words, the association must have the express authority to deny transfers of title, and the restrictions on such sales must be reasonable. When an association fails to do so, the result can be an expensive education for the Board of Directors and owners. / SB 630, Page 40), 12. On June 16, 2021, Governor DeSantis signed Florida SB 630, which will become effective on July 1, 2021. Documents provided to NPR show the board approved seeking a $15 million line of credit on April 13, 2021. 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. However, what information may the Association actually rely upon in making its decision to accept or deny a prospective tenants application? 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. 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. As of this writing, Senate Bill 1966 has not yet been presented to the Governor. 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. For transfer purposes, spouses, a parent or parents, and any dependent children are considered one applicant. 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. 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. If the tenant fails to comply, the association can evict the tenant under the landlord-tenant statute by serving a three-day notice to pay or vacate . 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. David T. Podein is a senior associate at Haber Slade. Conflicts between Chapter 718, Condominium Act, and Chapter 617, Florida Not for Profit Corporation Act (SB 602, Page 16). 16. For instance, you might have to keep bicycles or kayaks out of view, behind a fence. 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. 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 information you obtain at this site is not, nor is it intended to be, legal advice. To view past articles, please click Publications on our firm website. They must act reasonably. Phone: (561) 471-1366 They are for all intents and purposes tenants and fall under landlord-tenant law. Criminal history. The only real financial connection between a tenant and a community association is the fact that, if the landlord unit owner becomes delinquent, the association has the right to collect rent. Attorney at Law at Dania S. Fernandez and Associates, P.A. The investment group argued the amendment was a violation of their property rights. The prospective owner in the latter case went to court and the judge ruled insisting on tax returns was overreaching and unenforceable. 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. A:Florida law supports the right of a condominium association or homeowners association to review and approve prospective leases and tenants. In many cases, this is not a power originally vested to the HOA, but one they have created. However, the percentage of rental units may not exceed the FHA owner-occupancy requirements. Visit www.gadclaw.com or ask questions about your issues for future columns, send your inquiry to: question@gadclaw.com. 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. A: Florida law supports the right of a condominium association or homeowners' association to review and approve prospective leases and tenants. (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. That case started when an investment group bought a condominium and the owners in the condominium later amended the declaration to limit rentals. To avoid surprises, buyers request condominium associations provide a letter confirming the status of assessments. Florida recently passed new laws governing emotional support animals (ESA) which go into effect on July 1, 2020. 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 . 718.303 (1), owners . 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. Fines Due Date Section 718.303(b), F.S., (SB 630, Page 53). The law has been amended to provide that written notice of a meeting other than an annual meeting must include an agenda; be mailed, hand delivered, or electronically transmitted to each unit owner; and be posted in a conspicuous place on the condominium property or association property within the timeframe specified in the Bylaws. at 2522. Your California Privacy Rights/Privacy Policy. 5. HOME; . Don't Threaten. 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. 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. Under the new Condo Board crime law, any Condo Board member that destroys an official document or record of the Condo Association "in furtherance of a crime" commits a crime. (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. HOA/Condo laws in Florida allow HOAs considerable discretion in approving or denying potential buyers and renters. The law was amended to clarify and expand a developers right to use sales and reservation deposits placed in escrow. 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 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. I would also recommend reviewing the associations bylaws as this document sometimes contains notice requirements which are more restrictive than the statutory requirements. The legislature was apparently aghast and shortly after the Supreme Courts decision amended Floridas Condominium Act. . Q:Our election is in 20 days and the board claims to have mailed out the package last week. 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. Exterior storage. Such is the case in Woodside Village Condominium Association, Inc. v. Jahren, 806 So. (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). The Fair Housing Act includes familial status (children) as a protected class. Please try again. Condominiums Rights to Approve Transfers, Rules can be changed by unit owners voting to amend the declaration. (Section 718.111(12)(c)1, F.S. Questions regarding the content of this article may be emailed to Christopher Pope at chrispope@paveselaw.com. State law limits such fees to . 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. The hiring of an attorney is a decision that should not be based solely on advertisements or this column. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship. A recent lawsuit filed by a tenant against a Miami condominium association is claiming excessive application fees were charged, violating the Florida law. The rule was held beyond the boards authority. An arbitrary disapproval of a tenant or purchaser is likely to be unenforceable. 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. An overview of florida condominium association collections of past due maintenance fees. The trial court disagreed and explained the investment group bought knowing unit owners could amend the declaration at any time. The building, about 6 miles from Surfside, was deemed. 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 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. Senate Bill 630 went into effect on July 1, 2021. Some experts have gone so far as to state an association must buy a condominium unit when it refuses to approve a sale. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Be Truthful. A person buying a condominium unit buys with actual or constructive knowledge of provisions of the declaration and is bound by them. Renewal of lease or sublease with the same tenant cannot be charged a fee. 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. Contacting us does not create an attorney-client relationship. Insurance Subrogation Section 627.714(4), F.S., (SB 630, Page 5).