By Ryan D. Poliakoff / Published March 2019
I would appreciate your input on a situation my grown sons are facing in locating a place to live. The two of them (29 and 31 years old) plus one other young man are looking for a three-bedroom apartment or townhome to share. They applied to rent a condominium unit and were approved by the landlord after each paying $100 for the application and passing their financial and background checks (they have positive previous rental history). They have signed the lease and were told the condominium association would have to give their approval, which could take 15 days. The 15th day has passed, and they are still waiting to hear. The word they get is that their application is still under review. They went through a realtor as well, so I am at a loss as to why this process should or could be taking so long. Who makes an applicant and a landlord wait that long to enter a contract? Is this the new way of renting housing units?
When they hear the result, the result could very well be a denial. They will then be out the $300 and over half a month waiting to hear the result, before now searching for another place! Is this legal or in compliance with general rental protocol? It’s certainly not streamlined for the renters or even a landlord who is looking to make money from his or her property. Any comments or advice?
I can certainly appreciate your frustration, and it is absolutely true that most HOAs and condominiums are not set up to make it easy to lease units or lots within the communities. In fact, the vast majority of covenants are designed to make it particularly difficult to lease property, as it is widely felt, whether correctly or not, that renters are less desirable neighbors than owners, as renters tend to care less about the long term health of the community; are more likely to violate the rules; are more likely to damage association property; and are, generally, more of a nuisance than owners. In my experience, this absolutely does not play out as accurate, but it is certainly the prevailing view among condominium and HOA owners and boards. In fact, the predominant trend is to draft provisions into governing documents that either greatly limit leasing (for example, by requiring that you may only lease once every several years, or that leases must be exactly one year in length); or that prohibit leasing within the first few years of ownership, in an effort to discourage investor owners from purchasing lots or units. Note that, legally, governing documents may prohibit leasing entirely—and many do so. It is not a foregone conclusion that property owners in shared ownership communities have the right to lease their property. Anecdotally, however, it is my experience that HOA communities are typically less restrictive than condominium communities (perhaps because the impact of renters living in single family homes is less significant than the impact of renters who are literally sharing elevators, hallways, and common facilities with their neighbors).
Each condominium or HOA declaration will specify the requirements for leasing approval, and the associations do have to abide by those requirements. But, 15 days is not a long period of time at all. Thirty is typical, and yes, that does make it difficult for the prospective renters. On the other hand, remember that the association boards who are approving the rentals are made up of volunteers who are not working on these issues full time, so you need to give the association time to do a background check, submit that check to the board or a review committee, give everyone time to review the results, and then come to a decision on the tenant.
The good news is that most documents provide that, if a lease is not either approved or denied within a certain period of time, it is deemed approved. Of course, your sons and their prospective landlord would need to be willing to push the matter legally, and some associations will ignore such time restrictions and even physically bar a tenant from moving into the property—and the only effective remedy for such actions would be for the landlord to threaten to sue the association for interfering with his or her right to contract with the tenants. For the majority of landlords, it’s not worth the battle.
If your sons are looking for a quick and easy process for leasing an apartment, they should stay away from communities governed by deed restrictions and instead look for privately-owned apartment buildings or homes that are not governed by community associations. There are plenty of private apartment buildings, and these properties are specifically structured in order to lease units quickly and efficiently, with the lowest possible barrier to entry.
Ryan D. Poliakoff
Partner, Backer Aboud Poliakoff & Foelster
Ryan D. Poliakoff is a partner of Backer Aboud Poliakoff & Foelster and serves as general counsel to condominiums, homeowners associations, and country clubs throughout South Florida. He is the co-author of New Neighborhoods —The Consumer’s Guide to Condominium, Co-Op, and HOA Living. In addition to representing associations, he is a frequent contributor at seminars and workshops for attorneys and board members, and he has written hundreds of articles for magazines and newspapers throughout the United States. He can be reached at firstname.lastname@example.org. For more information about his firm, visit www.bapflaw.com.