Commonly Requested Amendments

02.2.2017

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08:08 pm

Commonly Requested Amendments

    • Fines

Many Florida Condominium Associations, particularly older Associations, do not have the ability to fine unit owners for their failure to comply with the Condominium Documents. This has become a problem for may Associations who have learned that the only real way, absent a fining provision, to enforce the regulations set forth in the Condominium Documents is to engage in lengthy and expensive litigation. However, amending the Condominium Documents to provide for a fining provision can rectify this problem. Specifically, Section 718.303 of the Florida Statutes provides that if the declaration or bylaws so provide, the association may levy reasonable fines against a unit for failure of the unit owner, occupant, licensee, or invitee to comply with any provision of the declaration, bylaws, or reasonable rules and regulations of the association. 718.303 of the Florida Statutes provides the rules for the imposition of fines which should be included within the condominium documents if an amendment is undertaken. Specifically, no fine shall become a lien against the unit and no fine may exceed $100.00 per violation. However, a fine may be levied on the basis of each day a violation continues with a single notice and opportunity for hearing, provided the fine does not exceed the aggregate of $1000.00. Additionally, this section provides that no lien may be levied except after giving reasonable notice and an opportunity for hearing to the unit owner. The hearing must be held before a committee of other unit owners. If the committee does not agree with the fine, the fine shall not be imposed.

    • Lease Restrictions.

Amendments regarding lease restrictions have become very popular as many Condominium Documents are either silent or provide very limited regulation over leasing. Generally speaking the Courts will permit reasonable restrictions on leases so long as the restriction is not unlimited or an absolute restraints on alienation. The following are several examples of issues, which many associations incorporate in any amendment regarding leasing:

      • Time limitations on leasing by new owners. An Association may prohibit the rental or leasing of a Unit prior to the expiration of specified period of time from the date of Acquisition of said property.

      • Limitations on long term and/or short term leases. The Condominium may limit the length of a rental. For example the Documents may provide that a lease must be for a term of not less than nor greater than one year.

      • Prohibitions and or restrictions on Rentals. Given the unique problems of condominium living in general and the special problems endemic to a tourist oriented community in South Florida in particular the Courts have held that an association may prohibit the leasing of Units so long as a hardship provision is included. The Courts determined that this was a reasonable restriction which inhibits transiency and to impart a certain degree of continuity of residence and a residential character to their community. For example, the Court in Seagate Condominium Ass’n v. Duffy, 330 So.2d 484 (4th DCA 1976) approved the following Declaration language:
        . . . the owner of each unit of Seagate Towers Condominium shall occupy and use such unit as a private dwelling for himself and his immediate family, and for no other purpose including business purposes. Therefore, the leasing of units to others as a regular practice for business, speculative, investment or other similar purposes is not permitted.
        To meet special situations and to avoid undue hardship or practical difficulties the Board of Directors may grant permission to an owner to lease his unit to a specified lessee for a period of not less than four consecutive month’s nor more than twelve consecutive months.
        In approving the above language, the Court reasoned that the language prohibited only a specific form of ownership under general but not unlimited circumstances and that the prohibition could be suspended upon a showing of undue hardship.
        Additionally, the Courts have upheld restrictions on rentals which prohibit an owner from renting a unit more than once during the period of ownership. See Kroop v. Caravell Condominium, Inc., 323 So.2d 307 (3rd DCA 1975).

      • Approval of lease agreement by Association. An Association may require that all lease be approved by the Association. A sample provision is as follows:
        “All leases or rental agreements must be in writing. All leases, addendums, and lease renewals shall be on forms approved by Association and shall provide that Association shall have the right to terminate the lease upon default by the tenant or other occupant of the demised Unit in observing any of the provisions of this declaration, the Articles and By-Laws of Association, applicable rules and regulations or other applicable provisions of any agreement, document or instrument governing the Association or administered by Association. Leasing of Units shall be subject to the prior written approval of Association. Any and all proposed Lessees, including room-mates of the demised Unit are subject to the prior written approval of the Association, in its sole discretion, and shall be subject to an application and screening process which may include, but is not limited to, credit, employment, and personal reference investigations. No lease or rental agreement shall be for a term of less than 12 months. No Owner may enter into more than one lease during any 12-month period of time irrespective of whether a tenant voluntarily vacated the Unit, has been removed through eviction proceedings or otherwise without the prior written approval of the Board in its sole discretion. Any and all lease renewals must be approved by the Association prior to the anniversary of the lease.”

      • Transfer and approval fees. As stated previously, the Association may only charge a transfer fee if the fee for approval is set forth in the declaration, articles, or bylaws of the condominium and the association is required to approve of the transfer under the applicable Condominium Documents. If so provided in the documents, the fee may be preset, but may not exceed $100.00 per applicant. (A husband and wife or parent and dependant child are considered one applicant). No fee may be collected if the lease or sublease is a renewal with the same lessee or sublessee.

      • Maximum lease percentages. An association may provide in the Condominium Documents that the number of leased Units shall not exceed a certain percentage of the total number of Units subject to its Declaration. Again, as stated above, this provision must be reasonable and can not constitute a complete restrain on alienation.

      • Eviction of tenants. The Association may provide in the Declaration that all leases shall provide that Association shall have the right to terminate the lease upon default by the tenant or other occupant of the demised Unit in observing any of the provisions of this declaration, the Articles and By-Laws of Association, applicable rules and regulations or other applicable provisions of any agreement, document or instrument governing the Association or administered by Association.

      • Other Restrictions

Associations have wide latitude in what type of reasonable restriction should be placed in their community. The following are several examples:

      • Restrictions on transfer other than by lease. These amendments can include such provisions as a right of first refusal, prohibiting the corporate form of ownership, and requiring the approval of any transfer by the association.

      • Occupancy restrictions. Associations sometimes find that units within the association are overcrowded and/or occupied by several individuals not related. This tends to detract from the community atmosphere which associations are attempting to maintain. This can be corrected by amending the documents to incorporate certain occupancy restrictions such as prohibiting more than one family reside in a Unit at one time, setting forth the maximum number of occupants including guests, and setting forth the maximum number of individuals per bedroom.

      • Late Fees. The association may levy a reasonable late fee in accordance with it Condominium Documents. Section 718.116(3) specifically authorizes late fees not to exceed the greater of $25.00 or five percent of each installment of the assessment for each delinquent installment that the payment is late only if said the declaration or the bylaws so provide.

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