Q: As the winter months approach, we anticipate a lot of vacation renters accessing the property through various vacation rental websites. In the past, we have had a difficult time addressing these violations because the tenants are gone before we are able to act on the violation. What can we do in anticipation of this happening again?
R.B., Marco Island
A: This is a common question and, admittedly, a question that the legal community is struggling to answer. There are also legislative issues at the local and state level which I will not discuss in this forum, but it is important to note that short term rental landscape is changing.
There are some new and innovative ideas to address this issue. I do not believe any of these ideas will completely solve the problem, but there is a shift towards creating an atmosphere that makes it difficult for short term rentals to succeed while maintaining the rights of owners and legal tenants.
One potential solution is access. How are the vacation tenants accessing the unit? If they are accessing the unit via lockbox or keyless entry, the Association could adopt a rule or amendment to the covenants which requires a uniform lock system, and which prohibits lock boxes. This rule may require an amendment to your Declaration of Condominium, and you may need to find a creative solution to address units listed for sale, but this creates an impediment to vacation-style access.
Another proposed solution is addressing the definition of commercial use. Florida courts and administrative agencies have recently determined that the rental of a condominium unit, even for profit, is not necessarily a commercial use because the activity inside the unit (sleeping, eating, resting, entertainment) is residential in nature. As a result, you may need to address this in your governing documents to expressly state that the use of rental and licensing websites is a violation. You may also amend your covenants to provide that advertising on rental or licensing websites in a manner inconsistent with the leasing guidelines is a violation of the covenants.
Next, I recently heard a proposal that owners be required to list their guests by name for the entire calendar year. The result would be that any person residing in the unit who was not previously on the list is presumed to be a tenant. This obviously reduces flexibility for owners, but it would avoid the situation where the owner claims to have 42 different cousins and relatives that come and go.
Another potential avenue is cleaning and linen. Recognizing that most vacation rental owners outsource the cleaning and linen service, the Association could seek to prohibit such services. Again, this could be a burden on existing owners, but that burden should be weighed against the burden of violative vacation rentals.
Every community will have a different leasing atmosphere with different tolerance for the above ideas and others which are intended to have the same impact. The above ideas are not exhaustive and also will not eliminate a short-term rental problem, but the recommendation would be to discuss the problem with your Board and legal counsel and determine if there are new and creative ways for your specific community to address the problem.
Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, Adamczyk, DeBoest & Cross, PLLC. To ask Mr. Adamczyk questions about your issues for future columns, send your inquiry to: firstname.lastname@example.org. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, PLLC or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.