Are HOA Owners “Grandfathered” In from New Rental Restrictions?
The Florida Condominium Act 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 unit after the effective date of the amendment.
There is no similar provision contained within the Florida Homeowners’ Association Act. The amendment to the condominium statute was the legislature’s reaction to a Florida Supreme Court case which held that because condominiums are a “creature of statute”, unit owners take title to units knowing that most of the legal rights under their condominium documents can be changed by amendment. Homeowners’ associations are subject to slightly different legal principles including how courts review amendments to covenants and restrictions. I am of the opinion that there are generally no “grandfathered rights” in the HOA context, but the language of individual governing documents plays a large role in the analysis of this issue. This means an HOA should always have an attorney review the governing documents for that community if rental restrictions are being considered.
David G. Muller – Board Certified Condominium and Planned Development Law Attorney, Naples