Leasing and Tenants

January 28, 2022

Important Takeaways for Community Associations from TV News Report on Rules Enforcement

A report that aired in late November on 7News (WSVN-Fox) in South Florida focused on a local renter in a dispute with her condominium association over her motorcycle. While the property’s rules ban motorcycles, the tenant had apparently been explicitly told she would be allowed to keep and park her motorcycle at the property prior to signing her lease. Three years later after she’d been using and parking her motorcycle at the property without complaint, she received a notice from the association indicating that it had to go or it would be towed.

It appears that the tenant’s response was to call or email the TV station’s tip-line, and the end result was another thoroughly investigated and highly informative “Help Me Howard” segment by its senior reporter Patrick Fraser and long-time legal expert Howard Finkelstein.

The report chronicles how Alexa Polcyn had been allowed to use and keep her motorcycle at the property for over three years until the association suddenly began “hassling our landlord about it.” She tells Fraser that she had noticed the restriction on her lease but was expressly told by the association that her motorcycle was not going to be an issue.

The association was apparently true to its word until three years later in late 2021 when it decided it would begin enforcing its motorcycle ban. It issued her a written notice that the motorcycle had to go, so the question for the station’s legal expert was whether the association could now change its mind on an exception to its rule that it had previously granted?

August 18, 2021

Community Association Tenant Vetting, Approvals Require Careful Guidance by Qualified Pros

by Christyne Santisteban

Christyne Santisteban

Florida community associations typically have the right under their governing documents to regulate and approve leases and tenants. However, some association boards of directors are under the misconception that they can easily develop and implement new leasing restrictions via a board vote, and that they have the authority to approve or reject prospective tenants as they please without facing any scrutiny of their decisions.

As my colleague Laura Manning-Hudson wrote in this blog in her June 9 post titled “Suit Against Boca Condo Association Spotlights Importance of Governing Document Amendments, Filings,” a lawsuit filed earlier this year against Boca Pointe Condominium Association highlights the importance of properly adopting leasing restrictions to an association’s governing documents and recording them in the local court registry where the association is located.

According to the suit, the association’s new leasing restriction, which it apparently adopted via a simple vote of the board the directors, was never approved by all the unit-owner association members via a formal vote. The only leasing restriction in the association’s recorded declaration states that owners are only restricted from renting units for terms of less than thirty days, contradicting the new restriction that the board tried to implement. If the allegations in the lawsuit hold up in court, the association could be forced to pay the plaintiff unit-owners’ lost rental income and legal bills.

August 13, 2020

Article by Michael Hyman in Today’s Daily Business Review: Ruling Exposes Perils of Overzealous Buyer Screenings by Community Associations

by Siegfried Rivera

Siegfried Rivera

Firm shareholder Michael L. Hyman authored an article that is featured as the “Board of Contributors” guest commentary column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper. The article, which is titled “Ruling Exposes Perils of Overzealous Buyer Screenings by Community Associations,” focuses on a recent ruling illustrating how associations that go too far in their screenings of prospective new buyers and tenants could face legal consequences. His article reads:

. . . The recent ruling ordered a Marco Island condominium association to stop its unreasonable screening practices, and the case made local headlines in the pages of the Naples Daily News.

David Mech, a prospective buyer at the Crescent Beach Condominium, sued the condominium association in December and represented himself in the case without the benefit of legal counsel. He alleged that he walked away from his $425,000 all-cash offer to purchase his dream condominium unit because he refused to comply with the associations’ request to provide his last two annual tax returns for himself and Katarina Palijusevic, who planned to invest in the unit with him.

“There’s no reason for them to know the total income for people,” he states in the newspaper article. He believed the financial screening requirement was unjustified and just “plain nosy,” so he walked away from his opportunity to acquire the Marco Island condo. “Do I really want to live in a building that has that type of board? That’s really an issue to me,” he stated.

The Collier County court judge ruled that the board’s blanket policy requiring new buyers to produce personal tax returns was “patently unreasonable.” The judge awarded Mech his legal costs and is yet to determine the final award. Mech claims that he lost approximately $4,000 just from his early withdrawal from his apartment lease in Irvine, California, prior to being informed of the tax return requirement.

August 28, 2018

Fair Housing Discrimination Suit Against Condo Association Offers Cautionary Tale on Overzealous Occupancy Restrictions

by Siegfried Rivera

Siegfried Rivera

Condominium association boards of directors are always considering measures to help maintain and enhance the quality of life of their community’s owners and residents. Some associations grow concerned about too many occupants per unit and the burden that additional residents place on a community’s amenities and services, so they decide to implement occupancy restrictions in order to limit the number of people residing in each unit.

However, as a Palm Beach County condominium recently found out, overly aggressive occupancy restrictions have the potential to run afoul of the federal Fair Housing Act bans on discriminatory housing practices against couples with children, and nonprofit housing agencies are willing and able to take up the case of aggrieved residents or proposed residents.

A fair housing advocacy group called the Fair Housing Center of the Greater Palm Beaches filed suit in federal court recently against the condominium association for the Fontana Condominium in Palm Beach as well as its president and property manager. The suit alleges that the defendants have discriminated against families, including those with minor children, by enacting and enforcing policies that limit the number of persons and children who may reside in the community’s units. It is seeking preliminary and injunctive relief as well as damages for the alleged discrimination against familial status in housing that violates the Fair Housing Act and the Civil Rights Act of 1968. The suit also seeks punitive damages, attorneys’ fees and a court order mandating that the defendants establish a victims’ fund for those were victimized by their discrimination.

March 23, 2018

HOA Hires Private Investigator to Catch Owners Conducting Short-Term Rentals

by Roberto C. Blanch

Roberto C. Blanch

Condominium associations and HOAs throughout South Florida as well as across the country are seeking effective responses to the problem of short-term rentals that are in violation of their rules and restrictions. These unauthorized rentals, which have become prevalent with the growth of Airbnb and other online home-sharing platforms, are creating significant security and liability concerns for associations.

One response by a San Diego homeowners association recently drew the attention of its local ABC affiliate, which chronicled how the community had retained a private investigator to gather and document incontrovertible proof that specific owners were conducting the restricted rentals. The licensed private detective and his associates were hired by the HOA and other local associations to investigate homeowners and tenants who are violating association bylaws and CC&Rs that prohibit turning units into short-term vacation rentals.

While the hiring of private detectives may initially seem as an extreme measure for an association, it makes sense when one considers the risks and concerns that are brought on by these rentals for HOAs and condominiums. Also, court actions may become necessary against some unit owners who flout the rules, and the evidence obtained by these investigators as well as their testimony can be very helpful in these proceedings.

March 9, 2018

Vigilance Necessary to Prevent Association Construction Workers Staying Overnight in Empty Units

by Siegfried Rivera

Siegfried Rivera

A recent newspaper report about squatters in condominium units illustrates the level of vigilance that associations and their property management must employ to prevent any unauthorized uses of their residences.

The article in January by the Citrus County Chronicle documented the case that took place at The Islands condominiums in Crystal River, Fla. (pictured below). Work on the residences in the community became necessary due to extensive damage caused by Hurricane Hermine in September 2016, and it had been progressing well until several unit owners discovered workers were staying in the units without permission.

It began when one of the owners noticed wet floors near the shower and other indicators that the construction workers were not just replacing cabinets or working on the carpets. He and a neighbor later found workers sleeping overnight in the condo unit of another owner who did not know they were there, so they called the police. Continue reading

March 22, 2017

Article by Gary Mars in Today’s Daily Business Review: “Airbnb Gone Wild? Decision Clarifies Rules on Short-Term Condo Rentals”

by Siegfried Rivera

Siegfried Rivera

Firm partner Gary M. Mars authored an article that appeared as a “Board of Contributors” guest column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper. The article, which is titled “Airbnb Gone Wild? Ruling Clarifies Rules on Short-Term Condo Rentals,” focuses on a recent decision by the Second District Court of Appeal that found that the fairly standard language present in the declarations of condominium and accompanying rules and regulations for many properties does not grant unit owners with the unrestricted right to lease their residences. Gary’s article reads:

The ruling came from the Florida Second District Court of Appeal in the case of Le Scampi Condominium Association v. Hall. Le Scampi had petitioned the lower court for injunctive relief against the unit owners to prevent them from leasing their residence for less than one month without prior approval by the association in violation of its rules.

The Halls did not dispute to the trial court that they had rented their unit for periods of less than one month without prior approval, which constituted violations of the association’s rules. Their defense was based on arguments that those rules were unenforceable because they conflicted with their right to lease their unit under the community’s controlling documents.

The lower court issued a final summary judgment in favor of the Halls based on its finding that the conflict indeed existed and the language in the original declarations of condominium for the property supersedes any lease restrictions in the rules and regulations.

The appellate panel found that the trial court’s interpretation of the declaration was inconsistent with its plain language. It ruled that the section in question does not provide that the right to sell, lease or transfer a condominium unit is unrestricted with the exception of a notice requirement. Instead, the declaration merely imposes a prior-notice requirement and specifies the contents of the notice, but it does not otherwise address a unit owner’s right to sell, lease or transfer their unit to persons other than family members.

February 21, 2017

Associations Need to Seek Ejectment Rather Than Eviction for Some “Tenants”

by Laura Manning-Hudson

Laura Manning-Hudson

When the Condominium Act was amended several years ago to allow associations to demand and collect rent directly from the tenants of unit owners who were delinquent in the payment of their monthly fees, community associations thought it was an answer to their prayers. Associations were struggling to recover from the foreclosure crisis, and many homeowners made the decision to rent their units to make some money but, unfortunately, they also chose not to pay their associations.

However, utilization of this amendment has proven to be difficult and sometimes costly to enforce in cases in which de facto tenants and their landlords are able to demonstrate to the court that a tenancy under the letter of the law is not actually in place. How many times have we heard that the tenant is “family,” that the tenant does not pay the landlord, and that there’s no lease in place?

A noteworthy example is found in a ruling last year by the Miami-Dade County Circuit Court Appellate Division in the case of Cecil Tavares v. Villa Doral Master Association. vdoral-300x226 Tavares had conveyed his condominium unit via quit claim deed to a new owner, but he and his wife continued to live there. When the new owner went into arrears with the association, it attempted to collect the rent directly from Tavares and eventually filed for an eviction.

The county court granted default judgment in favor of the association and issued a writ of possession to enable it to move forward with the eviction, but Tavares appealed on the question of whether the court erred by defining him as a tenant based on the quit claim deed.

August 1, 2016

New Monitoring Services Help Associations Catch Owners Conducting Unauthorized Airbnb Rentals

by Roberto C. Blanch

Roberto C. Blanch

The problem of short-term rentals with the help of Airbnb and other similar websites in violation of community association rules has quickly become one of the most pressing issues facing associations today. Even though Airbnb, HomeAway and VRBO claim they prohibit their hosts from renting residences in communities with rules against short-term rentals, enforcement of this policy by the online home sharing providers is virtually nonexistent.

This makes it incumbent upon the associations and their property managers to proactively monitor and investigate for unauthorized rentals and their online listings, which can be extremely difficult. In most cases, the unit owners conducting the rentals know full well that they are violating their association’s rules, so they do what they can to avoid detection.

Their ploys, which typically include walking their new guests into the property and advising security that their visit is authorized, are enabling many rentals to go undetected by management and staff. The result can be very troubling for associations, as unfettered short-term rentals can create a revolving door for guests with none of the prior screening and background checks that are typically performed for new residents and tenants.

April 6, 2016

Partner Roberto Blanch Quoted in Article by Daily Business Review on Airbnb Rentals in Communities with Associations

by Siegfried Rivera

Siegfried Rivera

Roberto C. Blanch

Firm partner Roberto C. Blanch was quoted by reporter Carla Vianna of the Daily Business Review, South Florida’s only business daily and official court newspaper, in an article that appeared in today’s edition about the issues facing community associations involving short-term rentals via Airbnb. The article reads:

Guests hoping to stay at a condo during the Miami Open tennis tournament found themselves stuck in a lobby with no access to the unit they rented on Airbnb, the online home-sharing service.

The family was denied keys to the property by the condominium’s management company.

. . . Miami-Dade County’s sunny beaches and high-rise condos make it a top destination for home-sharing networks like Airbnb and its users. The influx of visitors opting for alternatives to Miami’s pricey hotel rooms, like the family visiting for the Miami Open, is pushing demand for short-term rental options.

An estimated $2.4 billion was spent on lodging via Airbnb during the year ended in September 2015, commercial real estate firm CBRE Inc. reported. More than 55 percent was captured by five U.S. cities: New York, Los Angeles, San Francisco, Miami and Boston.

The rise of a sharing economy is creating a rift between condo owners looking to make extra cash and association boards whose members don’t want to share an elevator with strangers.

. . . “It has become a problem in a lot of condos,” said Roberto Blanch, a Miami attorney with Siegfried Rivera.

Associations at Mint and Ivy, two high-rise towers in downtown Miami’s Riverfront complex on the Miami River, are cracking down by restricting elevator and garage access to residents with a specific key fob or vehicle barcode, said Ari Tenzer, founder of the Tenzer law firm. Tenzer, who sits on his condo association board, said property managers are logging onto the Airbnb site themselves to catch violators.

Suspected violators receive written notice as a warning. They could also be called before a grievance committee.