The Condo Consultant from the PB Post

By Ryan Poliakoff – Special to The Palm Beach Post

Question: Can new owners arbitrarily turn their apartments into “condotels” (meaning renting on a weekly or even daily basis) if the documents specifically state that, “the purpose of this covenant in this section is to maintain a congenial, residential community, non-transitory in nature, and this covenant shall exist until this Declaration is modified or until the condominium apartment project is terminated as hereinafter provided”?

The definitions of “residential” and “transitory” are clearly stated in the Florida Statues. Can owners do something about this situation and return our building to a truly “residential” community? It seems that all owners were provided with copies of the declaration, so this should not be an issue of ignorance on their part. — P.R.

Answer: You make a very interesting argument, but I don’t think that the covenant you quoted is enough to constitute a rental restriction, or to give the board the power to create rental restrictions by rule, particularly in a condominium. A leasing restriction is a restraint on transferring a possessory interest in property, and such restrictions are judged at a higher standard than most other restrictions. The language you quoted seems to be part of a broader discussion, probably about approving sales and rights of first refusal. But, if your declaration is silent about leasing, the language in your governing documents is probably not specific enough to enable the board to restrict leasing on its own. You would have to amend the declaration of condominium — and then, many leasing restrictions can be enforced only against new owners who purchase their units after the amendment is adopted, and owners who consent to the amendment. Most amendments creating leasing restrictions are not enforceable against existing unit owners who do not vote in favor the leasing amendment.

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