Q: Our condo board just made a rule that no one less than 21 years of age can rent a unit, and they do not want to renew my tenant’s lease. Can that be done? The board approved the lease last year. – D.M.B., Estero.
A: Based upon your address, I am guessing that your condo is in close proximity to Florida Gulf Coast University, and that your condo board wants to put a lid on the rowdiness that comes with college life. My oldest is in college, and I would not want to live next to him. By the way, I am sure the feeling is mutual.
The question really boils down to how much authority a condo board has to make rules restricting unit rentals.
Age restrictions were common in condominiums many years ago. Then fair-housing laws were passed that required communities wanting to restrict occupancy by persons with children to qualify as “housing for older persons.” Translation: Very few communities could or wanted to jump through those hoops. And, I could be wrong, but I have yet to hear of a wayward youth literally burning down a condo. Literally, mind you.
So, although most communities cannot keep minors from residing there, no law restricts “discrimination” against those 18 and older.
Everyone discriminates every day. I don’t like asparagus. I choose not to eat it. I am fairly certain I could not be held liable for that. Even so, what would be the damages?
The restrictions that affect what an owner can or cannot do are spelled out in the declaration of condominium recorded in the public records of the county where the condominium is located. Beyond that, an association may make and enforce rules and regulations to the extent that the authority exists in either that declaration or the articles of incorporation or bylaws of the association.
A properly adopted rule cannot be beyond the scope of the authority of the board to make rules, cannot contradict a provision of the declaration or even a right “reasonably inferred” from the declaration. Whatever that means.
Rules and regulations, unlike provisions contained in the recorded declaration of condominium, have to meet a “reasonableness” standard in order to be enforceable. The reasonableness test is determined by the trier of fact, like a judge or arbitrator. Even a declaration provision can be invalidated if it is against the law (like an antiquated provision based upon race or religion) or has been arbitrarily enforced.
Although this is not universal, most recent condominium documents limit the rule-making authority of the board of directors to matters concerning the common property, such as parking or the pool. Rule-making authority over the use and occupancy of the units themselves is relatively rare.
Even if that authority does exist in the governing documents, the law requires at least 14 days’ notice be posted and given by mail, hand-delivery or electronically transmitted to owners for any meeting at which the board will consider an amendment to rules regarding unit use, which obviously would include the age of tenants.
Check to see if that happened.
With regards to your tenant situation, take a look at Section 718.110(13), Florida Statutes, which provides that any amendment to the declaration of condominium that keeps owners from renting their units, or changes the number of times they are allowed to rent their units, only applies to those owners who consent to the amendment and those who buy a unit after the amendment becomes effective.
Board rule-making authority is not specifically addressed, but I think a similar analysis would apply.
Good tenants can be hard to come by. The fact that you found one under 21 gives me hope. I stress over if I am even getting a call on Mother’s Day. If all else fails, can someone (mom or dad?) execute the lease and meet the letter of the law as it has been presented to you?
Tamela Eady is a Florida Bar board-certified real estate attorney with more than 25 years’ experience, concentrating her practice on community association and real estate legal matters. The subjects discussed in her columns are not intended as specific legal advice to anyone and are subject to principles that may change from time to time. Questions may be modified for clarity or for brevity. Email questions for possible inclusion in a future column to tke@eadylaw.com.
