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Designation of Primary Occupant

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Many condominium governing documents require new residents to go through a screening process. Section 718.104(5) of the Florida Condominium Act provides that “[t]he declaration as originally recorded or as amended under the procedures provided therein may include covenants and restrictions concerning the use, occupancy, and transfer of the units permitted by law with reference to real property.” Accordingly, the condominium’s governing documents may include provisions restricting use, occupancy, and transfer, thereby requiring a “screening” process.

The screening process, however, may be circumvented when a new person takes ownership or occupancy of a unit by virtue of being a new trustee, or a member of the entity owning a unit. When a unit is owned by co-owners who are not husband and wife, such as by a corporation, partnership, or trust, the legal title to the unit may remain the same (i.e. the entity holding title to the unit has not been transferred) but in actuality the person owning or occupying the unit may have changed. Therefore, because the title to the unit has not been transferred, an association may not have a purchase application to screen and no authority to screen the new owner occupant of the unit. As such, the screening process may be circumvented.

There is a way to prevent the bypassing of the screening process. If your association’s governing documents do not already include a requirement for the designation of a primary occupant, it may be a good idea for you to meet with your association’s attorney to discuss amending your condominium documents to include a requirement for such designation. Importantly, amending the association’s governing documents is not a simple task. Amendments that are drafted incorrectly, or which fail to follow the proper approval process will be void and unenforceable. As such, amendments should be done with the guidance of your association attorney.

When the association’s governing documents require the designation of a primary occupant, the primary occupant must be approved and screened in the same manner as a new title owner must be screened. Therefore, even if a transfer of the title to unit does not occur, when the actual person owning the unit or wishing to occupy the unit changes, the provision in the association’s governing documents requiring the designation of a primary occupant grants the association the authority to screen the new occupant owner. If your association’s governing documents require the designation of a primary occupant, the association has an obligation to insist upon uniform compliance of such designation. The failure to consistently enforce such requirement could render the provision meaningless.

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