As of July 1, 2021, homeowner associations (HOA) desiring to amend their governing documents to regulate leasing will have a more difficult time. Section 720.306(h), Florida Statutes, was revised to more closely mirror statutory provisions controlling condominium associations. These revisions curtail an HOA’s ability to enforce leasing restrictions against all owners within their communities.

Prior to these statutory revisions, Florida law did not regulate leasing restrictions with respect to HOAs. Instead, only condominiums were restricted in their ability to control leasing regulations against all owners. The relevant condominium statute holds that "[a]n 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." Section 718.110(13), Florida Statutes. In other words, if a condominium successfully amends their governing documents to restrict certain aspects of leasing, that amendment will only apply to those who voted in favor of the amendment, or to those who take title to a unit after the amendment was enacted.

The revised Florida Statute controlling HOAs now holds that any "amendment to a governing document, that is enacted after July 1, 2021, and that prohibits or regulates rental agreements applies only to a parcel owner who acquires title to the parcel after the effective date of the governing document or amendment, or to a parcel owner who consents, individually or through a representative, to the governing document or amendment." Section 720.306(h)1., Florida Statutes. This provision is problematic for numerous reasons.

Generally, HOAs only seek to regulate leasing in response to owners and/or their tenants who are abusing rental leniency in a community. A problematic owner has no incentive to vote in favor of a leasing amendment curtailing their own behavior. Therefore, even if an association gathers sufficient votes to amend their governing documents to ban the use of Air BnB, for example, an owner who is profiting from Air BnB has no reason to vote against their own interests. As a result, despite the prohibition of Air BnB in the wider community, the problematic owner’s lot will not be subject to the restriction until title changes hands. This is an issue condominium associations already grapple with that now harms HOAs as well. Unfortunately, the news gets even worse for HOAs.

The statute controlling leasing amendments in condominiums only applies to certain situations – 1) amendments prohibiting unit owners from renting their units or altering the duration of the rental term or specifying, or 2) limiting the number of times unit owners are entitled to rent their units during a specified period. The language in the statute controlling HOAs is significantly broader and applies to any amendment that "prohibits or regulates rental agreements." The limiting language found in the condominium statute is absent from that controlling HOAs. As a result, amendments to HOA governing documents requiring rental applications, background checks, limitations on entire homes rental versus single rooms, etc. will now fall under the new statute’s control. Any "regulation" an owner does not vote for will not apply to that owner.

Luckily, there are exceptions to the statute – 1) HOAs may amend their governing documents to prohibit and regulate rental agreements of less than six (6) months, and 2) associations may prohibit the rental of a parcel for more than three (3) times in a calendar year. Amendments to the governing documents that include these restrictions will apply to all owners if passed, regardless of who voted in favor. Additionally, none of the provisions of this statute apply to HOAs with 15 or fewer parcels.

For communities with lease restrictions in place prior to July 1, 2021, rest assured, they will continue to apply owners. For those communities that need assistance navigating the new statute, Tankel Law Group is available to provide guidance.