The Basics of Florida Condo Leases
Florida’s laws clearly define what a condominium lease agreement is. The Condominium Association Act states that the owner of a condo unit may not lease the entire unit without the consent of the condominium association. A "condominium lease" is defined as "any lease of a condominium unit for a term longer than 12 months or any lease, for any term, other than a lease for residential purposes, without regard to whether rent is paid." See Fla. Stat. § 718.103(23) (emphasis added).
By specifically stating that a condominium lease is "any lease, for any term, other than a lease for residential purposes," the statute makes clear that the Act covers any and all leases of condominium units for non-residential purposes, regardless of duration.
A condominium lease agreement is basically a contract between the owner of a condominium unit (the lessor) and another person (the lessee) allowing the lessee to occupy the condominium unit in exchange for rent. It is the association’s duty to ensure that the lease agreement is followed by both parties.
While most condominium lease agreements are for residential purposes, the law makes clear that a condominium lease agreement is not limited to only those types of leases. For instance, while a President Barack Obama’s decision to lease a condo unit at the Estates at Acqualina may be atypical, it undeniably falls under the statutory definition of a condominium lease.
Over the years, Florida courts have charged associations with the additional responsibility of collecting proof, under penalty of perjury, that a lesser is leasing a condo unit solely for residential purposes . Associations should also require a lessor to present a copy of any condominium lease agreement to the association within 10 days of executing the lease. This will allow the association to keep a record of the lease agreement, which, more importantly, allows it to provide notice that its right of consent is being exercised.
Both the lessor and lessee of the condominium unit must comply with any rental restriction plan that the condominium association has approved. This plan and accompanying rules must be furnished to the lessee or sublessee BEFORE execution of the lease or sublease, or before occupancy if there is no lease. Upon the lessee or sublessee request, a copy of the rental restriction plan, with accompanying rules, should be furnished to the lessee or sublessee within 3 business days after each member of the condominium association agrees to the rental restriction plan and receives notice of the rental plan.
When an owner wants to transfer the unit he or she owns, the unit owner may opt to rent the unit and live elsewhere. Condo associations cannot prohibit rentals of less than one year. However, if a condo owner wants to rent the unit for a period of less than one year, the association must approve the rental.
The condominium association may require that the owner give notice of the intention to lease to all unit owners or an authorized committee, which then must be provided with each owner’s written approval of that lease or sublease. However, it is not required that all owners approve of the rental. If only one member of the association wants to prohibit the rental, then that prevents the rental from taking place.
Important Lease Terms in Florida Condo Agreements
Typically, Florida condominium lease agreements will contain key provisions which are common to many lease agreements. Such provisions would include the following:
- Parties to the Lease Agreement: The names of the landlord and the tenant.
- Term: The commencement date of the lease and its termination date.
- Rent: How much, when and where rent gets paid.
- Security Deposit: Amount of security deposit required, how and where it gets paid and whether it is being held by the landlord or a leasing agent.
- Maintenance/Repairs: Landlord’s obligation to repair and maintain the leased premises versus the tenant’s obligations to repair and keep the premises in good condition.
- Utilities: Which party is responsible for water and sewer, gas, electric, cable TV, telephone and other utility expenses and fees.
- Parking and Use of Amenities: Whether the tenant is entitled to parking and whether they have access to and may use the pool, spa, saunas, gym, clubhouses and other amenities.
- Additional Parking Fees: Whether there are additional fees for use of parking spaces or amenities.
- Late Fees: What late fees (if any) is the landlord permitted to charge if rent is not timely paid.
- Pets: Whether pets are permitted or not.
- Title to Separate Parcel: Whether the lease agreement is required by law to be recorded in the public records of the county where the condominium is located and that it pertains only to a separate parcel pursuant to Section 718.104, Fla. Stat.
Rights and Responsibilities of Tenants in Florida
In addition to the rights and obligations spelled out in the condominium lease agreement, there are rights and obligations that can be found in Florida Statutes (the "FS" for short").
The FS states that a tenant must:
a. Comply with the covenants and the rules and regulations of the condominium, set out in FS §718.113(2)
b. Therefore, HOA rules extend as obligations and duties to both owners and tenants alike.
Rent and Utilities: The condo unit owner must pay the rent and utilities, i.e. the common expenses to the condo association as and when due. FS §718.116(4) The tenant is required to do the same, if the condo unit owner is due rent from the tenant. He or she can sue for rent or he/she can issue a 3 day eviction notice for non-payment of rent. FS §83.56 (1)(a) Generally, the landlord is responsible for HOA common expense payments when they are due, unless otherwise agreed.
Quiet Enjoyment: The tenant must "not be subject to retaliatory conduct by a unit owner, their guests or agents for exercising rights". FS §83.53(4)
Florida Landlords’ Rights and Responsibilities in a Condominium Setting
In Florida, landlords who lease condominiums must be aware of their responsibilities to maintain their leased property in accordance with the governing documents and state law. As with residential leases, Dixie County Florida v. Kasper, 753 So. 2d 121, 123 (Fla. 1st DCA 2000), sets forth the general rule of law that the rights and duties of the landlord/ tenant relationship are defined by the lease (governing documents) and must be followed. The Kasper court, relying on Green v. Platinum Too, Inc., 870 So. 2d 955, 956-57 (Fla. 5th DCA 2004), held that the Florida Residential Landlord and Tenant Act ("Chapter 83 of the Florida Statutes") applies to condominiums, unless the condominium documents or Chapter 718, Florida Statutes provide otherwise. Consequently, unless the governing documents state otherwise, a landlord who leases a condominium unit to tenants cannot "waive or vary his rights or that of his agents under [Chapter 83]" (1010 Collins Avenue Association, Inc. v. Chapter 83 vs. Chapters 718 and 720 – The Battle of the Acts 6/12/07).
Nevertheless, the Kasper court acknowledged that a condominium association could adopt bylaws to alter Chapter 83 in its application to condominium associations. The Kasper court held that because the bylaws failed to specifically state that they intended to alter Chapter 83, they did not do so. Furthermore, the Kasper court encouraged other providers of rental units, such as some condominium associations, to consider adopting rules that govern tenants and their landlords "in order to promote[] an environment that is consistent with the community’s objectives." For example, the Kasper Court stated that a condominium association’s bylaws could contain the following: The Kasper court recognized that the above mentioned rules provide a method for condominium associations to manage relations between the association and the landlord/ tenant relationship. As a result of the Kasper decision, it might become a common practice of the condominium associations who offer leases for the convenience and benefit of their members to mandate that the tenants and landlords comply with the associations rental policies and pay the association a rental policy fee. Such rental policy fee provides benefit to both sides by enforcing a uniform set of rules and regulations for landlords, tenants, and associations.
Legal Issues and Common Pitfalls
As with any contractual agreement, condominium lease agreements in Florida may be subject to a range of legal considerations and potential issues. This section is not intended to be an exhaustive list, but rather a comprehensive overview.
Disputes over Lease Terms
Disagreements can arise over individual interpretations of lease provisions, such as security deposit terms, maintenance responsibilities, and the use of common areas. Florida law provides certain protections for both landlords and tenants, but specific confusions or disputes may require legal clarification or mediation.
Security Deposits
The security deposit is a common source of contention in lease agreements. Both Florida law and the terms of the lease itself should be carefully reviewed to avoid misunderstandings. The handling and return of the security deposit must comply with state and local regulations.
Termination of Lease
Parties may encounter disputes over the proper termination of the lease. Depending on the terms of the lease and state law, the notice period, grounds for termination, and procedures must be respected to avoid penalties, including potential legal action .
Duration of Lease
The duration of the condominium lease should be clearly stated in order to anticipate renewal or termination issues that could arise in the future. Failure to adequately address this matter can result in either party assuming the lease has been automatically renewed when it has not.
Early Termination
Both tenants and landlords may have reasons for early lease termination. The conditions that allow early termination should be specifically articulated in the lease agreement to avoid confusion and possible legal action.
Disputes
Common disputes between landlords and tenants of a condominium include late rent payments, unauthorized modifications to the unit, and issues with subleasing. Having a clear and detailed lease agreement is essential for identifying responsibilities and liabilities and subsequently resolving any breach of contract issue.
Dispute Resolution Mechanisms
Dispute resolution clauses should be included in the lease to outline how disagreements will be managed, whether through mediation, arbitration, or by taking legal action. Many Florida condominiums have internal bylaws or CCRs that outline such mechanisms for member disputes.
Legal Assistance
Complex lease disputes may require the involvement of an attorney experienced in real estate and condominium law.
Condo Lease Drafting Best Practices
The first step to drafting a strong condo lease is to understand the governing documents of the condominium association. Both landlords and tenants should carefully review the declaration of condominium and any bylaws or rules and regulations adopted by the association. Often the documents will contain specific qualifications that a tenant or leasing agent must have in order for the association to approve the lease. Next, the lease should be clear on identifying the premises, the dates of the lease term, the rent due and format in which it must be paid, and who is responsible for utilities. In addition, it’s important to clarify who will be maintaining the property, accounting for any special assessments, and for repair of any damages. Landlords and tenants should also consult the condominium’s governing documents and the Florida Residential Landlord and Tenant Act in order to understand their rights and obligations under state law. Tenants should be sure to review the requirement for associational approval both prior to entry into the lease and again before the tenant moves into the premises. Landlords and tenants may want to consider hiring an attorney to draft the lease in order to ensure that it conforms to state law and all rules and regulations of the condominium association.
How Local Laws Affect Florida Condominium Leases
Local laws can introduce additional requirements, restrictions, and responsibilities for condominium leases. In Florida, fair housing laws play a particularly crucial role in determining the rights and responsibilities of landlords and tenants. These laws prohibit discrimination on the basis of race, color, national origin, religion, sex, familial status, and handicap. Where state or local law provides additional protections, these may be read into the lease agreement. Likewise, if the lease agreement imposes requirements on the tenant that exceed state or local law, such additional restrictions may not be upheld. Other common licensing regulations are often revenue enhancement measures for municipalities and, in some cases, simply exist to lend some legitimacy to short-term rental enterprises. These may include business licenses and licensing provisions for other services offered in connection with those rentals. It may also be necessary to obtain permission from a local housing authority or permitting department in order to lease space in this manner. Although fictitious names are not as commonly registered in Florida as they tend to be elsewhere, it may also be necessary to register the name of the property as a fictitious name if served by a website or portal. Condos in certain areas of the state may be subject to an occupancy covenant that restricts the rental of units for certain periods of time. For instance, certain areas may offer a bonus to assessors if a unit is occupied for more than 80% of the year. Certain homeowner associations permit only short-term rentals, while others prohibit any rentals. There may also be restrictions on the minimum allowable term of a lease or the frequency of renewals. Restrictions on short-term rentals in local ordinances have recently been the basis of a number of conflicts between homeowners and short-term rental enterprises, as homeowners seek the opportunities to limit or qualify the types of short-term rentals that may occur in their communities. Similarly, a personal property or apartment complex could be subject to a special taxation regime because of the nature of its rental and use.
Frequently Asked Questions about Florida Condo Lease Agreements
Can a condo association add or amend rules for leasing the units?
Yes. The condo association is a corporation. It can exercise all the powers granted to corporations generally in the Florida Not For Profit Corporation Act. The Condo Act specifically authorizes a condo association to adopt rules governing the leasing of the condos.
Is a condo lease agreement subject to disclosure requirements?
Yes. The Florida Residential Landlord Tenant Act requires that a condo landlord provide the tenant with:
In a condo, the landlord is not allowed to sign the lease unless the tenant has received the governing documents and rules .
When should I give a tenant the community rules?
Not less than 10 days before the tenant moves in. The tenant is also entitled to community rules that discuss restrictions on non-residents parking.
The tenant hasn’t paid rent. What can I do?
Generally, the association has a super lien on rental payments and it can collect unpaid assessments from the rental income. However, a tenant can have an affirmative defense to any attempt by you to collect rent if you didn’t provide an estoppel letter to the tenant. This is a letter from the condo association explaining whether the tenant has to pay you rent.