|By Ann M. Henson
Posted September 12, 2003
KEY LARGO, Fla. - Steve and Judy
Comley purchased their dream retirement home in Florida in 1996 with the
thought of renting the condominium for most of each year until they were
ready to quit working and move in.
But earlier this year, the board of their
condo association banned short-term rentals of the units on posh Amelia
Island, threatening the investment and retirement plans of the Comleys,
who live on Frye Island in Maine. The Florida Supreme Court ruled in a
similar situation that condo boards can change rules governing rentals
without violating owners' property rights. Now the couple is lobbying the
state Legislature, their last hope in the fight to recover the rental income
and keep their retirement dream alive.
"We have, over the last five years, built
up a reliable clientele, but now have lost them all and will likely be
forced to sell the home we love and had planned to live in when we were
fully retired," said Steve Comley, 59.
The Comleys warn that other New Englanders
who own Florida condominiums could wind up in a similar fix, if they do
not keep up with their association meetings from afar. Massachusetts is
one of the top five states in the number of retirees who move to Florida,
and more people from the Northeast migrate to the state than from any other
region of the country, according to the Census Bureau.
Many people, like the Comleys, purchase
their future retirement condos with plans to rent them before moving to
the state, or as an investment. Steve Comley said their condo in the Piper
Dunes North section of Amelia Island is exclusive, and short-term rentals
went for $5,500 per month.
After learning of the condo board's decision,
the couple was further dismayed to learn that last year the Florida Supreme
Court ruled that boards of directors can change rules and impose new rules
on all condo owners - existing and future.
In that case, a Clearwater condo development,
heeding concerns of owners who thought too many units were being used as
long-term rentals, had voted to prohibit rentals of longer than nine months.
The Florida Supreme Court found that the association's leasing rules did
not violate any fundamental rights of the unit owners.
Because unit owners are living in such
close proximity and using facilities in common, each owner must give up
a certain degree of freedom of choice that might otherwise be possible
in a separate, privately-owned property, according to their decision.
The court said the association's goal to
"impart a certain degree of continuity of residence and a residential character
to their community, is, we believe, a reasonable one, achieved in a not
unreasonable manner by means of a restrictive provision."
The justices said it was up to the Legislature
to revise state laws governing condominiums and restrict the power of condo
associations over leasing rights. The court specifically suggested a grandfather
clause that would exempt current owners from any new restrictions.
The principle that the court laid down
in the Clearwater case applies to the Comleys' condo association, although
it imposed a limit on a different kind of rental.
The bylaws in effect when the Comleys purchased
their condo allowed short-term rentals, but the condo board's president
wanted the complex to be exclusive and convinced the board that all rentals
should be banned, according to minutes of a board meeting. Comley said
the board imposed the ban even though "there's never been one complaint"
filed by residents against a short-term renter.
The Comleys have won support from some
neighbors in their complex, who wrote letters to the condo board president.
Jack B. Healan Jr., president of the company that manages the property,
wrote to state Senate President Jim King on behalf of the couple.
"Some associations with predominately full-time
owners have, by a majority vote, changed the documents to prohibit short-term
rentals," Healan said. He urged the Legislature to consider allowing people
who purchased condos when renting was an option to keep that practice until
the unit is sold.
The Comleys also are lobbying state officials
to revise the law. After meeting with the Comleys, King urged the Senate
Judiciary Committee to take action. State Representative Aaron Bean, who
represents Amelia Island, also has pushed for legislative action.
It is too late to take up a legislative
solution for this year, but King and Bean said they would look at it again
for the next legislative session, in 2004.
The issue is heating up as more people
purchase retirement homes in the state.
As of earlier this year, the state of Florida
had more than 1 million condos, according to a state condominium association.
And condo sales are shattering all records in the area, according to Realtor.org.
Jan Bergemann, a Florida Realtor and president
of the Cyber Citizens for Justice advocacy group, said more than rental
options are involved in this court ruling.
"In my opinion, the [Woodside Village]
judgment seriously restricts property rights," she said. "It has been used
since then by other associations to restrict dogs, rentals and other issues,
much to the disadvantage of unit owners. This will be an ongoing fight."
Click Here to Read : Florida
Supreme Court Decision: Woodside v. Jahren