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Limits on Amending Rental Rights

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Q: I live in a condominium and want to know if there is a state statute that limits the number of units that can be rented in a condominium or can the owners establish such a limit? (R.B., via e-mail)

A: Chapter 718 of the Florida Condominium Act (“Act”) does not limit the number of units that can be rented in a condominium association. Therefore, any limitation on rentals would be in the condominium documents. However, if the condominium documents do not contain rental restrictions, there are limitations on the ability of the association to adopt new rental restrictions. Section 718.110(13) of the Act states, “[a]n 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.”

As such, while an association can use its normal amendatory procedures to adopt amendments concerning leasing issues, any amendment that alters the rights protected by the Condominium Act only applies to unit owners that vote for the amendment or unit owners who take title after the effective date of the amendment. Therefore, if the association adopts a rental cap, restricting the ability to lease if the cap is met, that amendment would not apply to a current unit owner who does not vote for the amendment.

Further, in our experience, rental caps, even if properly adopted and applicable to most, if not all, owners, can create practical problems in enforcement. If the association reaches the maximum number of units that are permitted to be leased, the association then has to consider how to implement a “wait list” for owners wishing to rent their unit once there is space under the rental cap. Often, associations find that this additional administration burden outweighs any benefit received from a rental cap.

Other options that associations consider in addressing rental issues, are to implement requirements that owners obtain approval from the association prior to leasing their unit and the requirement that the proposed tenants complete an application and submit to a background check. In our experience, such provisions are relatively common in condominium associations. If your current condominium documents do not contain a requirement that owners obtain the approval of the association to lease their unit, including the requirement for a background check for the tenants, you should discuss what type of amendment would be appropriate to your condominium documents with your legal services provider.

Q: Are violation letters that are sent to other owners in a homeowners’ association records that are open to inspection? (G.R., via e-mail)

A: Yes. Section 720.303(4) of the Florida Homeowners’ Association Act (“Act”) discusses what the official records of the association are and lists a number of specific documents that are the official records. The Act also contains a catch-all provision which includes “all other written records of the association which relate to the operation of the association.” Therefore, violation letters to owners are part of the official records of the association.

Section 720.303(5) of the Act discusses an owner’s right to inspect and copy the official records of the association. The Act states that all official records are available to be inspected and copied by an owner with limited exceptions. Records that are excluded from an owner’s right to inspect include attorney-client privileged documents, documents obtained in connection with the approval of a sale or lease of a parcel, certain personal identifying information of owners, and personnel records of the association’s or management company’s employees. However, violation letters sent by the association to the owners are not exempted by the Act. As such, those letters would be a record open to the inspection and copying by any other owner.

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