New laws prompt HOAs to examine – and quickly change – rental restrictions in advance of July 1, 2021 effective date

Condominiums, cooperatives, and homeowners associations will see many changes to their operations following the new laws borne from Florida’s 2021 legislative session. Among these changes are new laws governing rental restrictions in homeowners associations in Senate Bill 630. The bill, which passed both the House and Senate, is anticipated to be signed into law by Governor DeSantis and will have an effective date of July 1, 2021.

The new law reflects the homeowners association’s corollary to rental restrictions which have been in Chapter 718 (the “Condominium Act”) since 2004. In summary, the new law will implement that following changes affecting how and against whom rental restrictions may be enforced in homeowners associations:

• as to homeowners associations with 16+ parcel owners, rental restrictions enacted after July 1, 2021, the restriction will only apply to parcel owners who voted in favor or who purchased after the effective date of the amendment; but
• regardless of how a parcel owner votes, the homeowners association can continue to regulate or prohibit rental agreements for terms of 6 months or less and may prohibit rental of a parcel for more than three times per calendar year, and any such restriction would apply uniformly to all Owners regardless of whether they consented to the amendment or when it was enacted.

Expressio Unius Est Exclusio Alterius

While the statute only explicitly sets forth when a rental restriction will not apply as to all members, the Latin maxim expression unius est exlcusio alterius, which loosely translates in English as “to express one thing is to exclude another,” aids in reading between the lines of the law. Implicitly, the law endorses the interpretation many community association practitioners have long held as to rental restrictions in homeowners associations; namely, that rental restrictions enacted on or before July 1, 2021 apply to all parcel owners regardless of whether the parcel owner voted in favor of the restriction.

Amending Governing Documents

The new law refers to rental restrictions made to “a governing document,” which leaves open an interpretation that such restrictions may be made to the declaration, articles of incorporation, bylaws, or rules and regulations. However, case law generally favors free and unrestricted use of property absent a clear and explicit covenant putting a property owner on notice otherwise. Therefore, what method – and what notice requirements – a homeowners association must comply with to duly enact a rental restriction will depend largely upon the governing documents of the community.

Take-Away

In summary, homeowners associations seeking to restrict rentals need to act swiftly to ensure any such restriction is properly passed and will apply uniformly as to all members, regardless of whether that member voted in favor or against the measure.