Are HOA Owners 'Grandfathered in' from New Rental Restrictions
By:David G Muller - July 14, 2018
Q: I read your Dec. 18, 2016 column which addressed a condominium association implementing rental restrictions through an amendment to their declaration of condominium. In that column you referred to certain unit owners being “grandfathered” in from the rental restriction if they didn’t vote for the proposed amendment or if they voted no. Do you think the same grandfather ruling applies to single-family home developments as it does to condominium developments? I’m not suggesting it does not, but am curious. R.M.
A: My Dec. 18, 2016 column you mentioned applied only to condominium associations. I discussed a change to the Florida Condominium Act, which was initially adopted in 2004, and later revised in subsequent years, which 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. Obviously, having an attorney review the governing documents for your community would be appropriate if this issue is under consideration, as rental amendments can be, and often are, controversial.
Q: The board of my condominium association has met on several occasions recently in a closed board meeting where unit owners are not permitted to attend. Is this legal? C.R.
A: It is legal for a condominium association board to hold a closed board meeting in certain circumstances. Section 718.112(2)(c)3, of the Florida Condominium Act, allows the board to hold a closed board meeting (where unit owners are not permitted to attend) in two situations.
The first situation is a discussion regarding personnel matters and the condominium association attorney is not required to attend the meeting. The second situation is a discussion of proposed or pending litigation and (in contrast to the first situation) the condominium association attorney is required to attend the meeting (in person or via telephone). Thus, the answer to your question will depend on what the board discussed during the closed board meeting. Also remember that closed board meetings still need to be noticed if a quorum of the board attends the closed board meeting.
There is similar authority to hold a closed board meeting for cooperative associations contained in the Florida Cooperative Act (Chapter 719, Florida Statutes) and for homeowners associations contained in the Florida Homeowners’ Association Act (Chapter 720, Florida Statutes).
Attorney David G. Muller is a shareholder with the law firm of Becker & Poliakoff, P.A., Naples (www.beckerlawyers.com). The information provided herein is for informational purposes only and should not be construed as legal advice.The publication of this column does not create an attorney-client relationship between the reader and Becker & Poliakoff, P.A. or any of our attorneys.