I’m always asked what can be done to prevent our community from completely turning into a rental community. The answer differs depending upon whether or not you live in a condominium or an HOA. Here is the case that settled the issue in a condominium:
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.”
However…..before you start amending your documents, there’s something you should know. 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, in a condo, even if an amendment passes which restrict the right to rent, you still retain 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.
This provision is not found in the HOA Act however. So, in an HOA, if the declaration of covenants is amended to restrict your right to rent, that amendment would apply to you, even if you voted against the amendment.
So, the bottom line is that it’s easier to prevent rentals in an HOA then it is to prevent rentals in a condo. But should it be?