Rental Restrictions and Tenant Approvals

Can a Florida Homeowners Association Impose Rental Restrictions or Screen Prospective Tenants?

In general, Florida law does not prohibit associations from imposing rental restrictions, so a “good faith” restriction promoting a substantial interest of the association and enforced in a non-arbitrary manner will probably be upheld. However, a board cannot unilaterally impose a restriction; it must be authorized by the association’s declaration, or by a validly adopted amendment thereof. An association must provide at least 14 days’ written notice to all members prior to any meeting at which use restrictions (including rental restrictions) are considered. Fla. Stat. §720.303(2)(c)(2). In associations with 15 or fewer members, the board can only enforce restrictions against a lot owner which were in place at the time the owner purchased his or her lot. Fla. Stat. 720.303(1).

In condo associations, amendments restricting rental rights are only effective against owners who (1) consented to the amendment or (2) purchased their units after the amendment became effective. Fla. Stat. §718.110(13).

The Florida Homeowners’ Association Act does not restrict an HOA’s ability to screen prospective tenants, if permitted by the governing documents. However, the federal and Florida Fair Housing Acts’ anti-discrimination rules make tenant screening a potentially risky pursuit for associations. 42 U.S.C. §3604(a). Even if a screening policy is not intended to discriminate based upon any prohibited factor, if the policy results in a “disparate impact” on a protected class, it may violate the Fair Housing Act and/or Florida law. Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S.Ct. 2507 (2015).

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