Condominium amendments limiting leasing may not apply to owners who do not consent

Dear Poliakoffs,

Our condominium association is proposing to change rental rules that will alter our entire reason for moving here. We’re snowbirds, and we bought here understanding we could rent the unit while we weren’t using it during the offseason. 

The current rule basically allows for a minimum six-month lease after one year of residency. We’ve owned for over two years. 

 Now there are three amendments up for a vote tonight that would change the rental rules. 

The first puts a cap of 10% on all rental units in the property -- there are 46 units in total. We understand that if we vote no, which we will, the cap won’t apply to us.  

The second resolution will say that the minimum rental period will now be one year rather than six months, and the Board attorney told us that, even if we vote no, we will still be bound by this provision if it passes. Is that correct? From what I’ve read, it doesn’t sound right. If we vote no, we should still be able to rent for a minimum of six months. That’s what we were looking to you to clarify. 

The third provision is that anyone living here would have to live here for two years before they could rent. We would vote no on this, too, but is a moot point really since we’ve owned our unit for over two years. 

 Our plan, not being independently wealthy, was to escape our rough winters, which is why we’re here, and then to rent the unit out from May to December to keep costs down (we’re both retired but like to travel). We put $150,000 into a renovation here when we bought and furnished the place, and the condo is just beautiful, so we’d like to use it and not be forced to either rent for a year or not use it, or to sell it. 

Signed, C.K.

Dear C.K.,

The law generally provides that condominium owners take title to their property with the knowledge that the governing documents can be amended, and that they will be subject to those amendments, even if the amendments may substantively affect the way they hoped to use their property.  

In response to this general rule, the legislature has carved out certain types of amendments that are not effective without the consent of the affected unit owner. 

 For example, an amendment that changes the percentage by which the units divide assessments, or that changes the size of any unit, cannot be effective unless approved by 100% of the unit owners. Section 718.110, Fla. Stat., also provides for specific limitations with respect to amendments that affect the ability to lease. 

 It states that 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, let’s consider the proposed amendments.  The rental cap may be construed as an amendment that would (effectively speaking) prohibit some unit owners from renting, and so I think that cap would not apply to any existing owner who did not consent. 

 Similarly, and in contrast to the advice you were given by the attorney, an amendment changing the minimum rental period is an amendment “altering the duration of the rental term,” and so it also would not apply. 

 Finally, the amendment creating a leasing moratorium, while moot in your case, is also an amendment that might prohibit a unit owner from renting, and similarly would not apply to any existing owner who did not consent, even one who had not been in the building for two years.

Ryan Poliakoff, a partner at Backer Aboud Poliakoff & Foelster, LLP, is a Board Certified Specialist in condominium and planned development law.  This column is dedicated to the memory of Gary Poliakoff, pioneer of the community association legal industry, tireless advocate, and author of treatises, books and hundreds of articles.   Ryan Poliakoff and Gary Poliakoff are co-authors of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living.  Email your questions to condocolumn@gmail.com.  Please be sure to include your location.