DO YOU HAVE THE RIGHT TO RENT YOUR UNIT? DEFINITELY MAYBE

In Woodside Village Condominium Association, Inc. v. Jahren  806 So.2d 452 (Fla. 2002)  The Florida Supreme Court heard the story of a unit owner who owned 4 units in a condominium and who basically lost the ability to rent those units because the unit owners voted to amend their declaration of condominium to only allow a unit to be rented for 9 months in a 12 month period.  Mr. Jahren sued the association alleging that the amendment was illegal.  The Florida Supreme Court ruled however that the amendment was not illegal.  In fact, The Supreme Court made it clear that there are very few restrictions found in the Florida Condominium Act when it comes to amending the declaration.   Moreover, The Florida Supreme Court found that Mr. Jahren was always on notice that the declaration could be amended and that this particular amendment does not violate public policy or his constitutional rights. 

Finally, the court opined that these type of restrictions imposed by the amendment to the declaration “simply come with the unique territory of condominium ownership. Indeed, it is restrictions such as these that distinguish condominium living from rental apartments or single-family residences. Hence, persons acquiring units in condominiums are on constructive notice of the extensive restrictions that go with this unique, and some would say, restrictive, form of residential property ownership and living.”

One Florida Supreme Court Justice was upset however with the fact that Mr. Jahren lost this valuable property right after so many years, and she urged The Florida Legislature to fix the problem.  As a result, the following law was passed for condominiums only:

An 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.

So, since this law was enacted, you still retained all the rights you ever had to rent your unit, as long as you did not vote in favor of any amendment which takes away those rights. 

There is legislation pending now which would change this.  It would require you to affirmatively vote against the amendment which would restrict your right to rent, and if not, the amendment will apply to you too.

There is potential for disaster if this provision passes.  For example, suppose you claim you were never sent the ballot to vote in the first place, and the amendment passes.  You’re stuck with it anyway.  Forever.  You can no longer rent your unit.  Even if you were out of the state or the country when the vote took place.  Unless you now sue the association. 

People that actually do vote against the amendment will also no doubt be defending their position one day when the association tells them — we have no vote from you against the amendment in our files.  Associations and even management companies are known to lose or misplace records every now and then.  For example, try and locate the original list of parking assignments from the developer to all of the unit owners.  Good luck with that.  And that is why there are fights over parking spots thirty years after the condo is built.

Sometimes you have to leave well enough alone.  Another way of saying it is…….if it ain’t broke….don’t fix it.

 Article Source Eric Glazer, Esq. Florida HOA and Condo Blog

Pay or Face Foreclosure

According to USA Today; “One in five U.S. Homeowners are subject to the will of the homeowners’ association, whose boards oversee 24.4 million homes. More than 80% of newly constructed homes in the U.S. are in association communities. And of the nation’s 300,000 homeowners’ associations, more than 50% now face “serious financial problems.”

 

Associations are foreclosing on delinquent units in record numbers. But is foreclosing the best option for the Association? Most Florida Boards would answer with a resounding YES!

 

By foreclosing on a delinquent unit the Association may lease the unit to a qualified tenant using the income to offset Association fees. But there are a few things Boards should keep in mind when moving forward with such actions. 

 

1. Engage a reputable attorney who can provide you with sound legal advice and who is proactive in monitoring the banks foreclosure activity on the target unit.

 

 2. The Board or staff member should walk a unit prior to taking foreclosure action to determine if the unit is in “rentable condition” or what will the cost be to bring it to “rentable condition” and then weigh those costs against the anticipated rental income.

3. Banks are notorious for sitting on units procrastinating on finalizing foreclosures so they don’t have to pay monthly assessments. The attorney should be able to estimate the length of time the Association will hold the unit by closely monitoring the stage of the Bank foreclosure process.

4. Most importantly the Board and Management company MUST ensure their financial records are accurate and that the target unit is in fact delinquent and all the proper notices have been sent.

By Darlys Walker

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