Q: Our condominium has a three month minimum rental term. However, there seem to be people coming and going all the time, often bringing suitcases like they are checking into a hotel. I know of at least one case where during conversation with a “guest” at the swimming pool, they commented on what a good deal they had gotten on their weekly rental. What can the association do about this? (J.L., via e-mail)
A: Your situation is not uncommon and a good set of condominium documents will put you in a much better position than poor documents. Unfortunately, there is a small segment of people who take the “ask for forgiveness, not permission” approach to condominium ownership. Admittedly, the temptation can be great since short-term rentals in desirable resort areas, especially during the “high season”, can generate substantial income. In all likelihood, many of these people are probably also cheating the government by not paying required bed taxes for these rentals.
There are two aspects to addressing your problem, detection and enforcement. Detection is decidedly more difficult, and this is where the provisions of your condominium documents come into play.
If your condominium documents do not regulate the use of units by non-paying guests staying at the condominium while the owner is away, it is much more difficult to detect rental violations. After all, the “renter” can simply say they are “friends of the family” and the burden is on the association to prove otherwise. While this can be done in legal proceedings, that is an expensive solution. Sometimes, however, it is the only choice.
Although many people buy condominium units with the expectation that they can let friends and family use them when they are not there, your declaration of condominium can regulate or limit that expectation. I have found that, at the least, it is desirable to have a system requiring guests occupying a unit in the absence of the owner to participate in some type of pre-occupancy registration. If, for no other reason, there is a safety factor in the event of some type of calamity, such as a fire.
In my experience, most associations do not attempt to significantly restrict the right of a unit owner to have family members occupy the unit in the owner’s absence, although pre-occupancy registration is still often required. With respect to occupancy by “unrelated” guests in the absence of the owner, I have seen many different approaches. Some associations prohibit such occupancies altogether. Others permit a limited number of unrelated guest occupancies in the absence of the owner, two per year being a common provision.
For associations with an “anything goes” policy regarding guests, you are back at square one in having to prove that the “guest” is really a “renter.” Some people advertise their units for occupancy in violation of the condominium rental regulations on various internet platforms that broker these rentals in some fashion. This advertising can serve as proof of participation in rental activities in violation of the condominium documents. However, the situation can be complicated because some platforms are set up to require nightly rental rates to be displayed. Some associations even have provisions in their condominium documents which make advertising for improper rentals a violation of the condominium documents itself.
When a violation has been confirmed, the owner must receive a “cease and desist” letter before formal legal action can be taken, so the dog gets one free bite, as they say in the law. If violations continue after proper notice, legal proceedings can be commenced to obtain an injunction against impermissible rentals. If the association prevails in that action, it is also entitled to the recovery of its costs and reasonable attorneys’ fees.
Fines and suspension of common area use rights are also another approach, effective in some cases, ineffective in others. Your best bet is to discuss this matter with your association’s legal counsel.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to firstname.lastname@example.org. Past editions may be viewed at floridacondohoalawblog.com.