Rental Violations Can Be Frustrating

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.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com

Who Replaces Condominium Building Windows?

Q: The windows in my condominium unit need to be replaced. My condominium association is stating that windows are my responsibility. Because the windows are part of the exterior building, doesn’t Florida law require the association to replace the windows? (S.R, via e-mail)

A: The Florida Condominium Act does not specifically address whether the association or the individual unit owners are responsible to maintain, repair, and replace windows. Section 718.113(1) of the Act states that the association is responsible to maintain the common elements. However, the statute goes on to state that the declaration can require that limited common elements be maintained by the individual unit owner benefited by the limited common element.

Therefore, whether the windows are the responsibility of the association or the individual unit owners will depend on whether the windows are part of the units or part of the common elements (and if a limited common element) and how the declaration assigns the maintenance responsibility. In my experience, it is fairly common to see the maintenance responsibility for windows and sliding glass doors placed upon unit owners rather than the association.

It is also important to note that the responsibility to insure windows and sliding glass door rests with the association as a matter of state law and cannot be altered through the condominium documents. Likewise, if the windows or sliders are damaged by an “insurable event,” such as a hurricane, the association is likewise responsible for repair or replacement of the windows as a “repair after casualty” at the expense of all owners, unless the association has “opted out” of that statute or if the statute is deemed inapplicable for constitutional reasons.

When the declaration requires the unit owners to maintain, repair, and replace windows, the current version of the statute also contains a procedure for the association, after majority vote of the owners, to install impact glass on a charge-back basis to the owners. Owners with compliant hurricane protection are excused from the assessment through credits. This provision of the statute is rather ambiguous and presents many technical legal issues, so a competent attorney should be consulted if this procedure is undertaken.

Q: A question has arisen in my condominium association concerning who has the authority to adopt the budget, the board of directors or the members. Can you clarify this for us? (D.A., via e mail)

A: As with many community association legal issues, the answer will be depend on the language of your condominium documents. The Florida Condominium Act does not specifically address the issue.

The statute states that board meetings where a budget is to be considered has to be noticed at least 14 days in advance by posting and mail or hand-delivery, and a copy of the proposed budget must be provided with the mailed/delivered notice. E-mail notice can also be used for those who owners who consent in writing.

Accordingly, the statute seems to contemplate that the board will approve the budget. In fact, the statute outlines a process by which the owners have the right to propose and adopt an alternative budget, when the budget adopted by the board requires assessments against the unit owners, which exceed 115% of the assessments preceding fiscal year.

However, it is not uncommon, particularly in older condominium documents, to see a requirement that the owners also approve the budget. In my opinion, such a provision is not at odds with the statute and would be enforceable. However, I do not believe such clauses are desirable for a variety of reasons.

It is also important to remember that even where the board has the authority to adopt the budget, the board does not have any discretion when it comes to reserves. Unless the owners have voted to waive or reduce the funding of reserves, any budget adopted by the board must include fully funded reserves.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com

Board Can’t Prohibit Hurricane Shutters

Q: Our condominium did a major renovation project several years ago, included impact glass for all the windows and sliders. Recently, our board received a request from an owner to install hurricane shutters. The board thinks this is unnecessary since we are already protected, and that shutters will detract from the look of our buildings. Can we refuse this request? (P.Q., via e-mail)

A: I don’t think so. Prior to 1991, Florida law permitted associations to prevent the installation of hurricane shutters, if authorized by the declaration of condominium. That year, the law was changed to state that a board could not deny a request to install shutters. That section of the law has been amended approximately 6 times since then, and unfortunately, with little regard for how the statute was already written.

The current law states that “a board may not refuse to approve the installation or replacement of hurricane shutters… conforming to the specifications adopted by the board.” The law also requires every condominium association to adopt hurricane shutters specifications, which “comply with or exceed the applicable building code” and which may include criteria on “color, style, and other factors deemed relevant by the board.”

Q: I live in a development with a homeowners’ association. Recently it was discovered that one of our board members was arrested for assault several years ago. It was my understanding that this would make that person ineligible to serve on the board. Is this correct? (N.R., via e-mail)

A: The Florida Homeowners’ Association Act does contain certain criteria which would disqualify an individual from serving on the board. Section 720.306(9)(b) of the statute states that a person who is delinquent in the payment of any fee, fine or other monetary obligation to the association is not eligible to seek election to the board. Additionally, any person who has been convicted of any felony in Florida or convicted of any offense in another jurisdiction, which would be considered a felony in Florida, is not eligible to run for the board, unless such persons civil rights have been restored for at least 5 years. The condominium statute contains similar provisions.

An arrest is not a disqualification. If your director was convicted of felony assault, he or she would not be eligible to have run for the seat.

Q: I am an owner in a condominium that has a no pet policy. There are two owners that currently have pets, which they claim have been approved by the board of directors. One of the owners claims that her dog is a “support” animal. The dog barks endlessly. Are there any restrictions that can be placed on support animals to address these types of noise issues? (D.L., via e-mail)

A. Support or “assistance” animals are becoming more frequent, arguably commonplace. The federal and Florida fair housing statutes require an association to make “reasonable accommodations” in its rules, policies, practices or services for handicapped persons in certain situations.

Properly documented support animals are exempt from restrictions on “pets” in the governing documents, including any rules relative to number, weight, size and breed. However, reasonable restrictions may be placed on support animals in a residential community.

Reasonable restrictions include those that provide that an animal not create a nuisance to others, which includes creating excessive noise (such as barking), aggressive behavior, the animal causing harm to persons or property, or the pet handler leaving pet waste on the property.

Support animals are permitted anywhere on the property that the handler is permitted. This includes the pool and clubhouse. However, the animal is not permitted inside the pool or in the kitchen in a facility where food is prepared.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com