|30% RENTAL RESTRICTIONS -- CAN AN ASSOCIATION BE CONSIDERED AN "ENTITY"?|
An Opinion By Terry Carlson
Published March 16, 2023
My association board told me that they have been advised that a 30% rental restriction rule can be implemented by the board as a “Rule”.
We all know that is not true, but the attorney they rely on has told them they can.
The CCR’s already have a rental restriction in place. That is, no unit may be rented for less than a six month period. I think such amendment is reasonable and quite fair. And this amendment has been in place when I bought the units in this condo association.
There has been no talk of seeking an amendment to adopt the 30% rule and in my opinion it would take an affirmative vote of a super-majority of owners to amend.
But my question does not concern the legality of their decision.
It's rather the question: Can an “Association” be ruled in a court case to be an “ENTITY”?
Is there a legal possibility that an association could be ruled in a court of law as an "ENTITY"? If YES it would create a whole new set of “property owner’s rights” that an owner would be entitled to.
In this case this would be my comment:
I have spoken with my attorney regarding this change and he mentioned a legal concept called “Taken”.
This refers to a change that takes away from the value of my property.
Florida does have a “Property Owner Bill of Rights”
In part this "Property Owner Bill of Rights" includes these rights and protection:
The right to acquire, possess, and protect your property.
The right to use and enjoy your property.
The right to exclude others from your property.
The right to dispose of your property.
The right to due process.
The right to just compensation for property taken for a public purpose.
“The right to relief, or payment of compensation, when a new law, rule, regulation, or ordinance of the state or a political entity unfairly affects your property.”
But the catch is the word “Entity”.
On the surface this applies only to a government agency, but the word “Entity” is open to interpretation, as so many words are in the English language!
In this case my opinion further focuses on whether or not an Association may be included in the broad definition.
If it is, I would be entitled to compensation for my lost investment.
Then it would fall under the “Taken” right to compensation.
Florida Statutes 70.001 states in relevant part:
(c) The term “governmental entity” includes an agency of the state, a regional or a local government created by the State Constitution or by general or special act, any county or municipality, or any other entity that independently exercises governmental authority. The term does not include the United States or any of its agencies, or an agency of the state, a regional or a local government created by the State Constitution or by general or special act, any county or municipality, or any other entity that independently exercises governmental authority, when exercising the powers of the United States or any of its agencies through a formal delegation of federal authority.
I hope that my attorney’s opinion would be as follows:
The constitution requires specificity, and where it is vague, uncertain or overbroad, a constitutional challenge can occur. You are correct in that where it states "or any other entity that exercises governmental authority" that this statement is overbroad. But, it would be overbroad in your favor. So you could use it as a challenge but the opponent would argue that was not what was meant or intended by the definition. So, a typical court case.
I am not questioning the 30% Rule/Amendment, but rather whether or not an Association can be deemed an “Entity”.
This would change the whole playing field!
If the board would enact the 30% rental restriction rule I would challenge the amendment.
My challenge would be asking to be compensated for my financial loss -- not the 30% rental restriction.
I am not arguing the PRO and CON of this rental restriction. I would be looking to get compensated for the financial loss I would suffer if my association would enact this restriction.
But in order to make that work the key words are still “TAKEN” and “ENTITY” -- and the legal interpretation of these two words.