Article Courtesy of Florida Realtors
Published August 30, 2020
Tenants rights, investment caps, document requirements and
other legal specifics aimed at community associations.
Capital contribution fees and Transfer fees
Condominium associations can't charge any fees for the sale, mortgage, lease,
sublease or other transfer of a unit unless the association is required to
approve such transfer and a fee for such approval is provided for in the
declaration, articles or bylaws. Such fee may be preset, but in no event may
such fee exceed $100 per applicant other than husband/wife or parent/dependent
child, which are considered one applicant. These fees are to be used for
screening and transfer approval only, not for capital contributions. (Section
718.112(2)(i), Florida Statutes).
Homeowners Associations (HOAs) do not have this restriction. Many developers
charge a one-time capital contribution when the developer sells a home to the
first purchaser. In some cases, this money is set aside and delivered to the HOA
at turnover to provide the community with start-up funds. After turnover from
the developer, the HOA, as controlled by the members, can continue to charge a
capital contribution fee on resales.
The amount of the capital contribution fee in an HOA is
regulated by the association’s documents, and the HOA membership can amend the
documents after developer turnover to increase or decrease the amount of the
It is important to remember that these fees must be authorized by the
association documents. If an HOA management company is charging a capital
contribution fee on every resale without clear authority in the governing
documents, the HOA board needs to consult with its legal counsel.
A community association may charge a fee for tenant screening as long as the
authority to conduct tenant screening and the fee is contained in the governing
For homeowners associations, there is no cap on a screening fee, but the amount
must be considered reasonable.
The Department of Business and Professional Regulation (DBPR) sets certain
requirements for management firms, including dealing honestly and fairly with
the community association. Any violation of these requirements should be
reported to the association's Board of Directors and to the DBPR.
If you or an owner believes the management company is acting in an unethical
manner, email the DBPR at
www.myfloridalicense.com/dbpr or call 850-487-1395.
Tenant rentals and foreclosure
The new owner of a foreclosed property does not have to honor an existing lease
agreement with a tenant. The new owner can give an existing tenant 30 days’
notice to vacate the property, assume the terms of the existing lease or
negotiate a new lease with the existing tenant. A tenant evicted by the new
owner must sue the former owner for a refund of the security deposit.(Section
83.561, Florida Statutes)
A Florida condominium association or homeowners association may collect a
security deposit from a prospective tenant in addition to the security deposit
collected by the landlord — if the association’s governing documents provide the
authority to do so. The purpose of that security deposit would be to protect the
association’s common elements and common area.
In the case of condominium associations, the deposit is capped at one month’s
For homeowners associations, there is no cap on the amount of security deposit
that an association may collect; however, the amount is subject to the rule of
A Florida community association has the right to impose a cap on the number of
rentals in the community. They typically do this for a legitimate reason such as
to stabilize property values in the community or to encourage mortgage lenders
to lend money to prospective buyers.
However, the association must maintain proper records to show that the rental
cap is applied consistently and uniformly.
For condominiums, if the board amends the governing documents to implement a
rental cap, that action would not be binding on existing owners unless they
consented to the amendment. The rental cap would be binding on all buyers who
purchase property after the amendment has taken effect.
For HOAs, however, the amendment would be binding on all owners as soon as it
'Crime-free' lease addenda
Many community association documents prohibit tenants from damaging the common
areas of the association and prohibit owners and their tenants from engaging in
noxious or offensive activity. Any document like this is likely to be upheld as
long as a "crime-free" lease addendum is not arbitrary in its application, does
not violate a public policy and does not violate a fundamental constitutional
When purchasing a condominium, the buyer is entitled to the following documents,
to be prepared at the seller’s expense: declaration of condominium, articles of
incorporation, bylaws and rules, a copy of the most recent year-end financial
information and frequently asked questions and answers document. The documents
may list restrictions regarding pets, vehicles, parking, rentals and noise as
well as requirements for flooring in condominiums, investor limits and many
other issues that could affect the purchase.
The seller of residential condo resale does have a set amount of time in which
to provide condominium documents to the buyer. However, note that the buyer's
three-day right to cancel begins once the buyer has received all the documents,
so it is in the best interest of the seller to provide these documents as soon
When purchasing a property subject to an HOA, the buyer is entitled to receive a
disclosure summary only, not specific association documents like a purchaser of
a condominium. This summary includes information such as mandatory membership
and any assessments regarding the property.
The salesperson should advise the buyer to consult with an attorney
knowledgeable about community association law to review the documents and the
effect of any restrictions on the buyer’s purchase.
Tenants’ rights and landlord responsibilities
If a condominium owner is more than 90 days’ delinquent in paying assessments on
a unit, the condominium association can suspend the rights of that owner – and
any tenant for that unit – to use common aspects of association property until
their fees are paid in full. The suspensions cannot apply to limited common
elements intended to be used only by that unit, common elements needed to access
the unit, utility services provided to the unit, parking spaces, or elevators.
(Section 718. 303(4), Florida Statutes).
Additionally, both condominium associations and HOAs can make written demand of
a tenant to submit rental payments to the association until the delinquent
balance has been paid in full. (Sections 718.116(11) and 720.3085(8), Florida
A condominium association may adopt an amendment prohibiting owners from
renting their units, or placing special limits on rentals. This amendment would
apply only to unit owners who consent to the amendments and those who buy units
after the amendment’s effective date. Rental limits might include rental terms
or specifying or limiting the number of times an owner can rent their unit
during a specified time. (Section 718.110(13), Florida Statutes.
As of July 1, 2017, there is a cap on the amount an association can charge for
an estoppel certificate on the property. An association can charge up to $250 to
unit owners who are current in their assessments. They can charge an additional
$100 for "expedited" estoppel certificates (delivered within three business
days), and another $150 to owners who are delinquent in their assessments. This
is a maximum of $500 for an expedited, delinquent estoppel certificate. The new
law also requires certificates to be delivered within 10 business days and
remain valid for 30 days. It also standardizes the information each certificate
must include so that each estoppel contains the same information.