I know in my assn, you have to own for 1 yr before you could rent out the unit ---a friend of mine lives in an assn that amended bylaws to make it a 2 yr ownership before rentable ---
Is the basic 1 yr rule applicable thru out CV or does each assn make own rule i.e. could an assn amend bylaws to ready no restriction /no waiting period - rentable upon purchase/ thanks.
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Mag:
ReplyDeleteLast month a unit in my association
was purchased and the new owner
did some renovations and somebody
just rented the condo. It was left
to our association to allow the
rental. Two years ago our assn.
would not allow any rentals.
I believe it is all up to the
association.
Have you studied your Declaration of Condo (DoC). A new amendment requires special meeting notices, proxies, meetings with quorum, and majority of vote as in the DoC, 51%, 66%.… file with Court.
ReplyDeleteIf you can pass it you can have what you want.
I don't think the 1yr is common, many assoc have no renting, or a restriction allowing once in a lifetime rental up to 7 months, in case of hardship only.
I think Randall Borchardt would be a good one to comment on this question. He may know what legal steps you can take today as opposed to in the past concerning changes in rental regulations, how many owners must be on board to effect change, the rights that owners not in favor have, grandfathering provisions, etc. He may be able to tell you (1) alternative approaches to getting most of what you want, and then (2) the legal steps you need to take.
ReplyDeleteThis might be a subject for Randy to expound on in the Reporter, too, I am thinking.
Randy, are you there?
a potential buyer was told by r.e. agent - unit buyer looking at ---rentable - I said you better get more/accurate info from an assn bd member and not proceed on premise you can buy and rent out immediately until you are ready to retire ---you may be in for a big surprise and financial dilemma! thanks for input/directives. I also advised- check if any/how many "deadbeat/walkaway" units --
ReplyDeleteMag, You inspired me to add an article ASK - BEFORE BUYING A CONDO to the Cyberspace Articles on the sidebar. My short version of important questions is:
ReplyDeleteAre any residents in default/
What is reserve size?
How old is roof?
Do Bylaws allow rental or pets?
Also, regarding the limitation on rental for 1 or 2 year periods, they are not rental restrictions, but purchase restrictions and do not effect any owner who owns prior to the recording of the restriction, but only to owners who purchase after the date of the restriction.
ReplyDeleteShould an individual sell his or her unit WITH a tenant in place, case law suggests that once the tenant vacates the unit, such purchase restriction goes into effect.
Elaine, you stated "If you can pass it, you can have what you want."
Though you mean well, your comment is misleading.
If an amendment to the Bylaws, for example, contradicts or contrvenes an expressed or implied provision in the Declaration, it is null and void (as the Declaration is a superior document).
Further, if said amendment violates federal, state, or county, or local ordinances, it is also of no effect for the reason mentioned above.
Properly filing an amendment against protected classes, for example, makes the amendment null and void.
This applies to ILLEGAL discrimination. Some forms of discrimination are legal. For example, a pet restriction which applies only to tenants and not to owners, though discriminatory, is quite legal, as owners are not on parity with renters or lessees.
Also, to be effective, an amendment must be timely and uniformly applied. Timely application of a contractual restriction has a five year statute of limitations in Florida, for it to be enforceable. If it is not uniformly enforced, it may run afaul of selctive enforcement and ultimately be overturned in a court of law.
By the way, I am not an attorney and this information should in no manner be considered a legal opinion, and there is no adequate substitute for the opinion of a competent condominium attorney on matters of a specific nature.
(Though, you can take what I have written to the bank, if you so wish to do so).
Randall said...
ReplyDeleteThanks Lanny,
About a year ago I documented and categorized the thousands of amendments for the CV Associations. Any question in regard to a particular Association and it's "policies" (Declaration and Bylaws Amendments)should be directed to me at my email address below.
These rental restrictions MUST be recorded at the clerk of county court, and in some cases, the errors in the protocol (legal requirements for document amendments) are material and the amendments are of no effect, as if they never existed (void ab initio). These are "homemade" amendments and are found in about five % of the documents that I have examined. When the amendment is properly written, the protocol followed and it is recorded, it is effective.
Since Ocober 1st, 2004 any amendment relating to a restriction on an owner's right to rental his unit ONLY APPLIES TO THOSE WHO CONSENTED TO AMENDMENT AND TO THOSE WHO PURCHSE THEIR UNIT AFTER THE EFFECTIVE DATE OF THE AMENDMENT. The recent Amendment (2010) to Florida Statute, Section 718.110(13)simply clarifies the 2004 amendment which was misinterpreted by some who felt that rental application changes fell into this category (among other changes which did not restrict the actual right to rent).
My email address is rvirginia620@comcast.net for personal and confidential service.
Wow- thanks again to all. Elaine, I have directed friends/potential buyer to your new article ---I think it's great and an excellent starting point. Bravo.
ReplyDeleteTo any Dover residents out there, especially any on the Board of Directors. As I mentioned in the comment stream, the rental restrictions written by Lou Augenblick years ago for Dover, have absolutely none of the (approximately 10)legally required protocols, and I very strongly suggest that they take those three different and separately recorded rental restrictions to a competent condo attorney for a written opinion.
ReplyDeleteThese rental restrictions are most likely to fall into the category of being void ab initio and can cause great hardship to those in Dover who wish to rent their units and were told that they were not permitted to do so.
I single out Dover since it is a single Association with 240 units, which in their case, would have required 180 affirmative votes if said restrictions were found to be legally binding (which I very much doubt). Practically speaking, the ability to properly summon 180 units (75% of the members) to agree to restrict future rentability of their units is similarly unlikely.
In the present state of the economy, with so many "upside-down" mortgages (debt exceeds unit worth), in many instances it is better to permit rentals than to make up the shortfall from delinquencies on units which may be abandoned simply because they may not be permitted to be leased.
Thanks, Randy, for coming through with flying colors in providing info re going rental, and thank you too for your kind remarks about the UCO Reporter folk in another blog. You don't know how much the staff, from Syd Kronish, the editor, down to me (new kid on the block) appreciate it.
ReplyDeleteI would love to see you do a thorough piece for the Reporter on this whole "going rental" business. I am thinking, because of the importance of this, it might be best to wait for a winter issue, when everyone is here. Do you think you could work up such a piece for later? It would need to be carefully written, which you would do anyway, but also so it could be understood by our rank and file. It would be the kind of thing association presidents (or anyone) could cut out and file away—and we might encourage them to do the same.
I haven't even asked Syd about this. These are just my thoughts today.
We APPRECIATE you in this Village. I hope you either are getting or will soon be getting relief from the back pain that has so plagued you recently. That is no fun.
Randall
ReplyDeleteCan you give me the site to look up Condo Docs ie: Clerk of County Clerk? I assume (which I do not like to do) that they are available on site? Correct me if I am in error.
Thanks
Tropworld1,
ReplyDeletehttp://oris.co.palm-beach.fl.us/or_web1/or_sch_1.asp
Rental restrictions are never originally in the 'body' of the Declaration of Condominum but must be an amendment to this document. Scroll down and press "ACCEPT". Place the name of the association, in the Part Name input line. A little secret to save you time is: Only open up a file which is labelled CND, CND A, Res, or Res A (Condominium Document, Condomininium Document Amemendment, Restriction, and Restriction Amendment) by clicking on "view". Also, if prior to entering "Party Name" you scroll down and use the drop down menue and check "Display 100 Records per page" which will save you from going through numerous pages (it'l just show a long list of records).
You must open each of these files to determine the MOST RECENT AMENDMENT relating to a restriction or other type of provision. The MOST CURRENT AMENDMENT takes precedent (if it was properly drafted and the protocols are in place). You may wish to call me at 688-9880 and I can probably save you time if you are having difficulty.
For example: A rental restriction that was more current but "homemade and contains 'material errors'" may not supersede a properly previously recorded rental restriction. The determination of how badly a document is drafted before it is deemed materially flawed, is tricky business. Good luck!
How very thoughtful Lanny. I plan to resume my "Randall's Condo Corner" in the upcoming Reporter but will "write rentals" when the seasonal residents have returned. Who said, "This was a thankless job"?
ReplyDeleteHi Elaine,
ReplyDeleteRe-reading your first comment, I thought it was also worth mentioning that an abosolute prohibition on rentals would be considered an "unlawful restraint on the alienation of one's preperty". Over the years, since 2004, the Florida legislature recognized this concept and considered leasing, a vested property right. At no time in the history of condominiums has a blanket no rental policy been legally recognized. As you mentioned, the most restrictive rental restriction includes a hardship provision and a "one time during the lifetime of the ownership of the unit to a specified lessee for a period of not less than four months and not more than 7 months in a twelve month period".
So a perspective lessee has a few hurtles to satisy such a restriction. The board must first determine that a 'hardship' exists and that it is the first lessee during the ownership period. There are two forms of the same amendment; the second one being "one time during the ownership of the unit" which have been utilized in the Village. What many people fail to understand is that the "one time" restriction refers to the same tenant year after year. Once the tenant vacates, no further rentals are permitted, unless there is competent and substantial evidence that any unit owner in the Association has in fact, rented their unit to a lessee different from the original one specified. In such case, slective enforcement issues come into play, and with legal assistance, may be overturned. I know of many such cases.
When such a situation occurs, and there are many of them, the amendment must be re-recorded with the county and a statement in the form of a resolution- (Notice of prospective enforcement) which must attest that as of such and such a date, this amendment may be rejuvinated without it being considered as a "new" amendment, subject to the restrictions of Section 718.110(13).
It also gets a little "sticky" when Boards are replaced, and what was considered a valid hardship by one board, may not be considered as such by succeeding Boards.That is where comprehensive minutes of the Board in this regard should be kept indefinitely. Fair housing has been known to request such records going back as far as 1989Minutes are only legally required to be maintained for a seven year period, and the details of the hardship which permitted the rental has been discarded (if such details were ever recorded in the first place). The moral is, Boards are encouraged to detail the specific nature of the hardship when rental requests are brought before the Board.