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Annual Budget Section 718.112(2)(f)1, F.S., (SB 1966, Page 46). If the Association does have tenant approval power, whatever the reason for rejecting the tenant, the Association must be prepared to explain. The investment group appealed and was successful, with the appellate court ruling that the change was a deprivation of property rights. Photo courtesy of Oleg Ivanov (Section 718.1255(4), F.S. Assessments and Statements of Account Section 718.121(4), F.S., (SB 56, Page 11). Forgery of a ballot envelope or voting certificate used in a condominium association election is punishable as provided in s. 831.01, the theft or embezzlement of funds of a condominium association is punishable as provided in s. 812.014, and the destruction of or the refusal to allow inspection or copying of an official record of a condominium . The association is required to mail the package to the last address provided to the Association. Consumer Price Index during that 5-year period. David T. Podein is a senior associate at Haber Slade. This means a person is no longer ineligible to be a candidate because they are delinquent on fines, fees, or any other monetary obligation other than assessments. What happens when an association wrongfully refuses to approve a transfer? A member of the Board will conduct an interview with the purchaser or tenant and issue a Certificate of Approval, if applicable. (Section 718.111(12)(g)1, F.S. Previously, a developer could use such funds for actual construction, but the escrowed funds may now be used for the actual costs incurred by the developer in construction and development of the condominium property. These new laws clarify how residents of Florida can properly qualify for an emotional support animal and affirm the special rights ESA owners have. Contacting us does not create an attorney-client relationship. If the Declaration provides, for example, only that all leases must be approved by the board, this may be sufficient authority for the board to adopt a rule or resolution setting forth good cause for denial. Many federal laws provide protection to people who could have been denied approval in the past. This new law also addresses a growing concern among landlords and condo boards, wherein tenants have been wrongfully passing off their pets as Emotional Support Animals by obtaining illegitimate ESA letters and certificates online. Fax: (239) 332-2243, 4632 Vincennes Blvd., Suite 101 Residents of the Crestview Towers Condominium carry their belongings as they leave their building in North Miami Beach, Florida, on July 2. Posted 6 years ago. However, condominiums can refuse to approve a transfer when the unit owner is delinquent in amounts due to the association. To view past articles, please click Publications on our firm website. Is there enough time to conduct the election? Copyright 2023, Pavese Law Firm. Get an email notification whenever someone contributes to the discussion. Most experts agree that the conviction of a violent felony might be sufficient or a history of refusing to follow the rules where the proposed new owner has lived. (and their tenants' and guests') right to use the common elements of the property if the homeowner is more than 90 days delinquent in paying their maintenance fees. Specifically, the Florida Condominium Act and Homeowners Association Act provide that an association's official records must include a statement of the account for each owner designating the due date and amount of each assessment, the amount paid on the account, and the balance due. Documents provided to NPR show the board approved seeking a $15 million line of credit on April 13, 2021. Editors note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC, respond to questions about Florida community association law. may be leased or rented without the approval of the Association. The FHA prohibits housing providers from refusing to otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.4 Despite the FHAs language, which provides protections for minority groups based on race, color, religion, sex, familial status, or national origin, the FHAs reach has been expanded to protect other minority groups not specifically listed in the statute. The Division now retains jurisdiction to investigate complaints against developers for failure to maintain the associations official records. As I indicated, the requirement to obtain an associations approval prior to selling or leasing a home or unit is deemed to be a restraint on the alienation of such real property, and as such, that restraint may only be imposed to the extent that it is reasonable. Prior to denying an application, and prior to offering a reason for the denial, the Association must ensure compliance with these laws, the reach of which was recently expanded by the United States Supreme Court. . There will be an exception to the rule of limited application (to successor owners or owners voting for the amendment) as to certain rental prohibitions or regulations for those restrictions that are put in place on or after July 1, 2021. The case ended up at the Florida Supreme Court and the Justices agreed with the trial court, leaving the investment group with a condominium unit they could no longer rent as intended. 1. This protective measure is deemed to enable the association to exercise some level of control as to the individuals that may reside in a community without unreasonably limiting the owners right to sell or lease the property. Tenant Approval Procedures Some HOA's are placing themselves in a position to actually screen the tenants that a non-occupant owner selects to rent. Attorney at Law at Dania S. Fernandez and Associates, P.A. Among the changes made was one that restricts the right of a homeowners association to implement rental restrictions applicable to properties subject to the association's governing documents. HOAs sometimes limit what types of equipment can be stored outside your home. Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. For example, if it can be demonstrated that the Associations reliance on a certain type of background check to reject tenant applications has a disparate impact on a minority group, the Association may open itself up to potential FHA liability. Note that notice may now also be posted on association property (i.e. Generally speaking, if an association's recorded governing documents do not contain the authority to evict a tenant within the condominium, then the association probably does not have the power to do so, unless there is a separate written agreement delegating that authority from the unit owner/landlord. A:This is a good question because the Florida Condominium Act does require that the Board keep minutes of every board meeting, and that minutes are official records that must be made available to owners when requesting access to official records. The deposit must not exceed the equivalent of one month's rent and be placed into an escrow account which the Association is responsible for maintaining. A careful analysis and potential corresponding adjustment of the Associations tenant acceptance policy could protect the Association should a disgruntled applicant bring a FHA claim against the Association. Condo Application Fees - What is Legal in Florida. 5. The statute had previously expressly prohibited potential conflicts of interest even if the financial interest was disclosed or approved by the Board or the unit owners, and conflicted with Section 718.3027, F.S. However, those exceptions are limited to: (a) rental restrictions that prohibit or regulate lease terms which are less than 6 months; and (b) rental restrictions that prohibit rentals of a parcel more than three times in a calendar year. Authority to approve sales or leases must be provided in the declaration of the condominium. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law. Are we required to make these available? HOA docs basically state that I can't rent rooms (only the entire house), lease forms must be approved by HOA, my lease must require tenants to follow HOA docs, my lease must give HOA power to terminate lease for failure to observe HOA docs, and that written permission by HOA is required to lease lots (which approval shall not be unreasonably . Surfside 8. Fax: (561) 471-0522. His practice includes litigation and divorce, business law, estate planning, associations and real estate. Conflicts of Interest Section 718.112(2)(p), F.S., (SB 630, Page 29). Please visit our website at. The statute recognizes the importance of maintaining a community in multi-unit housing, but confirms the Associations power to regulate transfers must be accepted by the owners before it can be exercised. Here we explain the ordinance and discuss whether other states allow associations to approve or reject potential HOA purchasers and renters, and the pros and cons. 16. All Rights Reserved. When weighing the information discovered during the application process, the Association must consider: (i) whether the Associations process for approving and/or rejecting prospective tenant applications complies with the Associations governing documents and current laws; (ii) whether the evaluation criteria used by the Association will have a disparate impact on a minority group; and (iii) whether the Association can provide a prospective tenant with a specific and appropriate reason for rejection. Miami-Dade County Ordinance Section 11A-18.1(b) requires that the Association must: (i) provide notice within 45 days of any tenant application rejection, and (ii) state, with specificity, the reason for the rejection. The due date for a fine was changed from being due 5 days after the committee meeting at which the fine is approved, to being due 5 days after notice of an approved fine is provided to the unit owner and, if applicable, to any tenant, licensee, or invitee of the unit owner. To avoid surprises, buyers request condominium associations provide a letter confirming the status of assessments. We look at the circumstances and process of how someone could be removed from a condo. The Department of Business & Professional Regulation (DBPR) must periodically calculate the fees, rounded to the nearest dollar, and publish the adjusted amounts on its website. If the Declaration provides this authority to the association, the maximum amount an association can charge a tenant for such a security deposit is one month's rent, as defined in . Suite 203 They must act reasonably. The law prohibits the use of the escrow funds for marketing or promotional purposes, loan fees and costs, principal and interest on loans, attorney fees, accounting fees, or insurance costs. The hiring of an attorney is a decision that should not be based solely on advertisements or this column. Alternative Fuel Charging Stations, (a) Natural Gas Charging Stations Section 718.113(8), F.S., (SB 630, Page 30). Becker & Poliakoff is one of Florida's preeminent law firms, and the firm that pioneered Condominium and Homeowners Association law in Florida. It also provides that condominium associations may charge a fee for approval of leases or sales, as long as the fee is provided in the declaration, articles or bylaws. I would also recommend reviewing the associations bylaws as this document sometimes contains notice requirements which are more restrictive than the statutory requirements. According to the suit, the associations new leasing restriction, which it apparently adopted via a simple vote of the board the directors, was never approved by all the unit-owner association members via a formal vote. Be Truthful. On the other hand, the statute also provides that owners are not entitled to access official records which includes any attorney client privilege or attorney work product prepared in connection with a lawsuit. State law limits such fees to . 5 See Mem. Under the new Condo Board crime law, any Condo Board member that destroys an official document or record of the Condo Association "in furtherance of a crime" commits a crime. Phone: (239) 542-3148 (1) If a landlord requires a prospective tenant to complete a rental application before residing in a rental unit, the landlord must complete processing of a rental application submitted by a prospective tenant who is a servicemember, as defined in s. 250.01, within 7 days after submission and must, within that 7-day period, notify the In addition, the association may not prohibit access that is necessary for the sale, lease, or other transfer of title to a unit; or the habitability of the unit; or for the health and safety of such persons. The period of time the condominium association must wait prior to foreclosing a claim of lien has been increased from 30 days to 45 days after the association gives written notice to the unit owner of its intention to foreclose the claim of lien. The period of time a unit owner has to pay a monetary obligation is increased from 30 days to 45 days after receiving an associations notice of intent to record a claim of lien. What might those be? We offer legal assistance in all matters of condominium association law, homeowners and community association law, real estate litigations and transactions, residential and commercial closings, and insurance law. Note: Be wary of using credit history as a ground for disapproval. Associations often require that prospective tenants submit pages and pages of paperwork, undergo background and credit checks, and pay application fees. History of nuisance in a previous community or in the subject community. For guidance as to how to prepare a proposed amendment to your HOA declaration that complies with the new HOA rental restrictions or for guidance on additional changes resulting from Florida SB 630, you can reach out to our association law team. In, Phillips v. Hunter Trails Community Association. The 2 Midtown condo association charges tenants and buyers $550 dollars in transfer fees. The law defines the term actual costs to include, but is not limited to, expenditures for demolition, site clearing, permit fees, impact fees, and utility reservation fees, as well as architectural, engineering, and surveying fees that directly relate to construction and development of the condominium property. The affirmative acknowledgments of unit owners related to any change in the method of delivery for assessments must be maintained by the association as an official record, but such record is not accessible to other unit owners as an official record. j. And while the circumstances may be different, there are ways for a condominium association to evict--or rather eject--an owner. The statute does not actually provide that minutes concerning a board meeting with counsel are exempt, but I would advise my clients to protect those minutes until the litigation is resolved. The Florida Condominium Act, Fla. Stat. In Phillips v. Hunter Trails Community Association, the rejected buyer recovered almost $200,000 in damages even though the association exercised a right of first refusal. A unit owner or lienor may contest a plan of termination through pre-suit mediation, and then file in a court of law as an alternative to arbitration with the Division. The board adopted a rule requiring the background checks, but we cant actually find anything about this in the Declaration itself. Those letters are known as estoppel letters for years, most associations charged $100 for an estoppel letter. the association may not allow access to "Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a parcel."8 The Condominium Act provides an additional statutory ground . 718.303 (1), owners . The minutes include votes on settlement parameters and include opinions of our counsel. Phone: (239) 334-2195 Threats of harming another The condominium association's board of directors has just approved a large special assessment to finance the replacement of an aging heating and cooling system, and owners are not pleased, to say the least. In this situation, the rule may be invalid and the Association should amend the Declaration to include these lease approval requirements in the Declaration itself. FCAP (Florida Community Association Professionals) is a member-based professional organization dedicated to training, equipping and advocating for Florida community association professionals including managers, service providers and community volunteer leaders. If a due date is not specifically identified in the Declaration of Condominium, Bylaws, or Articles of Incorporation, the due date is the first day of the assessment period. / SB 630, Page 9), (c) The association may not require a unit owner to demonstrate any purpose or state any reason for inspecting the official records of the association. in accordance with Florida Law, that upon receipt of notice from Sawgrass Villas Condominium Association . 819 (D. Nev. 1994). The Association should carefully consider its policy regarding tenant applications, specifically the criteria used by the Association in making its decisions, to ensure that valid interests are protected by such policy. Any access is subject to reasonable restrictions adopted by the association. The only real financial connection between a tenant and a community association is the fact that, if the landlord unit owner becomes delinquent, the association has the right to collect rent. You have permission to edit this article. on Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs, FHEO-2013-01 (April 25, 2013). Your California Privacy Rights/Privacy Policy. Anyone wishing to rent a condominium must complete the Association's "Background Consent Form" and submit same to the Association for completion of a background check, at the owner's or prospective tenant's expense. 13. Official Records Section 718.111(12)17, F.S., (SB 56, Page 6). As such, it is unclear how to treat a candidate running for the Board that is more than 90 days delinquent in a monetary obligation other than an assessment. No racism, sexism or any sort of -ism West Palm Beach, FL 33415 In Aquarian Foundation v. Sholom House, 448 So.2d 1166 (Fla. 3d DCA 1984), Florida's Third District Court of Appeal considered the validity of a condominium association's transfer restrictions . Condominium Act. While associations can apply the screening process to deny buyers and renters, the decision cannot be discriminatory or violate the Fair Housing Act. Whenever a tenant application is about to be denied, the Association must be ready to provide the specific reason for the denial, with such reason having its basis in a counsel-reviewed, tenant application policy. If the allegations in the lawsuit hold up in court, the association could be forced to pay the plaintiff unit-owners lost rental income and legal bills. Some declarations and bylaws for Florida communities provide associations with a right of first refusal, enabling them to accept the same terms and conditions for any good-faith lease offer that a unit-owner receives and is willing to accept. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. person will not be tolerated. On June 14, 2021, the Florida Legislature sent Senate Bill 630 to Governor DeSantis to be signed into law. I am not so sure that is law in Florida, since there could be very good reasons to disapprove a buyer that should not trigger for purchase by the association. 1833 Hendry Street My HOA requires a signed lease contract prior to the HOA background check and interview process. Alternative Dispute Resolution Section 718.1255, F.S., (SB 630, Pages 40 46), (a) In lieu of initiating non-binding arbitration, a party may submit a dispute to the pre-suit mediation process in accordance with Section 720.311, F.S., and then file in a court of law, which is the same procedure currently used by homeowners associations. Keep it Clean. Therefore, to ascertain what approval rights the association may have regarding a prospective tenant or purchaser, the association should begin by reviewing its own governing documents.