I am getting swamped lately with requests from both condos and HOAs as to how to limit the number of homes or units that are being rented. People are getting real tired of Air BNB type scenarios and want to know how they can put a stop to it.

Some background on this topic is necessary. In the landmark case of Woodside v. Jahren 806 So.2d 45 (Fla. 2002) Mr. Jahren owned two units in the condominium and he had been renting same for many years. The members of the association then voted to restrict renting to no more than nine (9) months in any 12 month period. Mr. Jahren argued that these amendments cannot be applied to him because these restrictions are unreasonable, deprive him of the use of his property, and were not there when he originally purchased the unit.

At The Florida Supreme Court, he lost. The court held that these restrictions prohibiting leasing were reasonable and do apply to him. The court reminded everyone that condo living is simply different than living in your own private home.

Courts have recognized that condominium living is unique and involves a greater degree of restrictions upon the rights of the individual unit owners when compared to other property owners.   See Seagate Condominium Ass’n, 330 So.2d at 486 (citing cases).   For instance, in White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla.1979), we recognized that “[r]easonable restrictions concerning use, occupancy and transfer of condominium units are necessary for the operation and protection of the owners in the condominium concept.”  Id. at 350.   In White Egret, we quoted favorably from Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180 (Fla. 4th DCA 1975), to further explain the restrictive nature of condominium ownership and living:

[I]nherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property.   Condominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization. White Egret, 379 So.2d at 350.   Consistent with this analysis of condominium ownership, courts have acknowledged that “increased controls and limitations upon the rights of unit owners to transfer their property are necessary concomitants of condominium living.”  Aquarian Foundation, Inc. v. Sholom House, Inc., 448 So.2d 1166, 1167 (Fla. 3d DCA 1984).   Indeed, section 718.104(5), Florida Statutes (2000), expressly recognizes that a declaration of condominium may contain restrictions concerning the use, occupancy, and transfer of units.   See § 718.104(5), Fla. Stat. (2000).Courts have also consistently recognized that restrictions contained within a declaration of condominium should be clothed with a very strong presumption of validity when challenged.

So, the restrictions on rentals stood. However, Justice Quince thought that this ruling was unfair to Mr. Jahren and stated in her concurring opinion, the amendment has deprived these owners of a valuable right that existed at the time of purchase.   This valuable right may well have been the determinative factor for their decisions to buy these properties.   As the district court suggested, there should at least be some type of “escape” provision for those “unit owners whose substantial property rights are altered by amendments to declarations adopted after they acquire their property.”

The Florida Legislature listened and passed Florida Statute 718.110(13) which states:

(13) 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…….in a condominium, even if your declaration requires a 75% vote to amend, and you get 75% of the owners to vote in favor of no more rentals, that amendment will not apply to anyone who did not specifically consent to the amendment.

Next week we will talk about HOAs.

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