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IF YOU WANT TO PUT A STOP TO OVERNIGHT RENTALS – YOUR DOCS NEED
CHANGING
By
Eric Glazer, Esq.
Published June 19, 2017
The numbers don’t lie. As a vacation
destination, Florida is where it’s at. Everyone, from all over
the world wants to lounge on our beaches and play in our sun.
This has created a fantastic financial opportunity for those who
own condominium units or homes located in a desirable community.
A condo owner for example, may be able to make the mortgage
payment simply by putting their unit on Air BNB for a few days
in a row. Do it the entire month….. and you’re earning some
serious cash.
Needless to say, there are many people who
oppose an owner who basically seeks to turn the condo or home
into a motel. And who can blame them? I certainly would not want
the condo unit next door to mine being occupied by different
people 300 nights a year. The question is……. is there anything a
condo or HOA can do to stop it? The answer depends upon what
your governing documents currently say.
Suppose the governing documents of your
condominium or HOA say that your unit can only be used for
“residential” purposes? Are you violating your governing
documents by renting out your unit each night? Is it now being
used for “business” purposes? Or, is it still being used for
“residential” purposes?
This question was just answered by Florida’s
1st District Court of Appeal in a case called Santa Monica Beach
Property Owners Association v. Acord. Believe it or not, this
was actually a case of first impression in Florida. The first
thing the Appeals court did was look at how other states around
the country have dealt with this issue and those courts have
almost uniformly held that short term vacation rentals do not
violate restrictive covenants. The court said that “The critical
issue is whether the renters are using the property for ordinary
living purposes such as sleeping or eating, not the duration of
the rental.” The court cited another case where that court said
“If a vacation renter uses a home for the purpose of eating,
sleeping, and other residential purposes, this use is
residential, not commercial, no matter how short the rental
duration.”
Condominiums and HOAs should not completely
freak out over this case. In this case keep in mind that the
association had no provision in its governing documents that
said a rental term must be for at least 30 days, or 6 months or
a year. The docs in this case were silent on that issue. So…….
the only thing the association had to hang its hat on was this
language that said you can’t operate a “business.” And the court
said people sleeping and eating in a unit is not the same as a
business being operated out of that unit.
Condos and HOAs can still prevent units from
being rented out on a nightly basis --- as long as the governing
documents specifically prohibit short term rentals and require a
minimum number of days. The problem is that many documents do
not contain these very specific provisions. If your documents
don’t have these provisions and you want to limit short term
rentals, it’s time to amend the governing documents.
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About
HOA & Condo Blog
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Eric Glazer graduated from
the University of Miami School of Law in 1992 after
receiving a B.A. from NYU. He has practiced community
association law for more than 2
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decades and is the owner of Glazer
and Associates, P.A. a seven attorney law firm with offices in
Fort Lauderdale and Orlando and satellite offices in Naples,
Fort Myers and Tampa.
Since 2009, Eric has been the host
of Condo Craze and HOAs, a weekly one hour radio show that airs
at noon each Sunday on 850 WFTL.
See:
www.condocrazeandhoas.com.
He is the first attorney in the
State of Florida that designed a course that certifies
condominium residents as eligible to serve on a condominium
Board of Directors and has now certified more than 10,000
Floridians all across the state. He is certified as a Circuit
Court Mediator by The Florida Supreme Court and has mediated
dozens of disputes between associations and unit owners. Eric
also devotes significant time to advancing legislation in the
best interest of Florida community association members.
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