It seems that the surge of tourism that Florida saw during COVID 19 is here to stay and with it, a surge of short term rentals in your Condominium Association. Given that short term rentals can significantly increase the traffic, noise, and liabilities your Condominium Association deals with on a daily basis, your Condominium Association may be interested in regulating, or even prohibiting short term rentals. But can it?
First things first, your Governing Documents should be reviewed by your Condominium Association’s legal counsel. Of course, the Governing Documents may already have, in plain English, provisions that regulate short term rentals, but that is not usually the case.
In fact, your Governing Documents may be entirely silent on short term rentals. What then? Again, your Governing Documents may say in plain English that your Condominium Association is authorized to adopt rules and regulations regarding short term rentals, but that is also not usually the case.
Instead, your Governing Documents may provide that your Condominium Association is authorized to adopt rules and regulations concerning the “use” of condominium property, which may arguably serve as a basis to regulate short term rentals. And even if you are missing such language, perhaps your Condominium Association can simply amend its Declaration to that effect.
However, even if your Governing Documents authorize your Condominium Association to regulate or prohibit short term rentals, whether by amendment to the Declaration, implementation of a rule, or otherwise, it still may not be able to completely regulate all short term rentals.
Indeed, Section 718.110(13) of Florida Statutes seemingly subjects certain regulations of short term rentals to the approval of the existing individual unit owners that it impacts:
- 718.110 Amendment of declaration; correction of error or omission in declaration by circuit court.—
- (13) 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 if your Condominium Association’s power to regulate won’t help, what to do with those existing unit owners who insist on operating their units as short term rentals? Well, perhaps your Governing Documents prohibit nuisance and such provisions may be used to bear on the situation, assuming of course, the short term rentals are causing a nuisance.
Likewise, perhaps your Governing Documents require only “lawful” uses of a unit. While that may sound like a vague provision, such a provision may be exactly what your Condominium Association needs to deal with short term rentals, as many cities in Florida have implemented local codes and ordinance that restrict when and where short term rentals are allowed, regardless of your Governing Documents or Florida Statutes.
Ultimately, this article is not intended to serve as an exhaustive list of issues and concerns that your Condominium Association may need to deal with in regulating short term rentals. Rather, this article is intended to emphasize that you should always consult your legal counsel early and often when it comes to the issue, as it can be nuanced to navigate and costly to address if done so without proper planning and analysis.
To read the original FCAP article, please click here.
Nicolas M. Jimenez is a Community Association attorney in the Miami office. Mr. Jimenez has experience representing clients in Florida state and federal courts and has a diverse range of subject matters, including matters relating to contractual disputes, non-compete litigation, intracorporate disputes, landlord-tenant disputes, employment disputes, class actions, and condominium related litigation.