By JUDY STARK
Posted October 25, 2003
The owner of a condo in Amelia Island is
hoping to change Florida law to protect part-time residents like himself
when a condo association changes its rules.
The Legislature is likely next spring to
take up his cause, which Senate President Jim King called "a major issue
around the state."
Stephen and Judy Comley, who spend five
months a year on Frye Island in Maine, bought a waterfront condo at Piper
Dunes North in Amelia Island seven years ago. They counted on being able
to rent the unit for three or four months each summer to make their purchase
financially feasible until they were ready to retire to Florida full time,
Stephen Comley said. The couple have established Florida as their permanent
residence.
At the time, renting units was legal, according
to the association's documents. Two of the 28 owners at Piper Dunes North
rented their units: the Comleys and one other owner.
Piper Dunes North, built in the early 1990s,
consists of two seven-story waterfront buildings with two units per floor
of 2,200 to 2,300 square feet that now start at $1-million, said Jack Healan
Jr., president of the Amelia Island Co., which manages the property.
Starting in 1996, the Comleys rented their
unit each summer to a small group of regular tenants who each stayed for
about a month and came back year after year. Comley charged his short-term
tenants $7,200 a month. None of the full-time residents ever complained
about the tenants. The Comleys paid $465,000 for their unit, "and we were
offered $1.3-million for it two years ago," he said.
In April 2000, the condo board proposed
eliminating monthly rentals "to protect the overall value of Piper Dunes
North," it told unit owners in a letter. It proposed minimum six-month
rentals. Changing the rules required approval of two-thirds of the unit
owners, and in July, unit owners amended their documents to allow rentals
of no less than six months.
The Comleys protested, saying their regular
tenants were not interested in six-month rentals, which also did not fit
in with their plans for occupancy. Renting for the three or four months
they're gone is necessary to "provide us with an income that we had counted
on when we bought," the Comleys said in a letter to the board.
Healan, the manager, agreed: "It puts an
economic hardship on someone who relied on that when they brought the property
to supplement their carrying of the property until the point when they
could use it full time," he said in a telephone interview.
The Comleys urged the board to grandfather
them in, allowing shorter rentals until they sell their unit. But their
association has stood firm, refusing to take up the matter again, even
though the Comleys solicited letters from a number of other unit owners
asking the board to reopen the matter and urging that the Comleys be grandfathered
in. (The other owner who was renting is following the six-month minimum
requirement, Comley said.)
Both the Comleys and their condo association
were closely watching a Pinellas County case, Woodside v. Jahren, for support.
In 1997, residents of the Woodside Village condo in Clearwater amended
their documents to eliminate 12-month rentals, restricting them to only
9 months a year. That had the effect of making it unfeasible for long-term,
permanent renters to live in the condo, since they would have to move out
for three months of every year.
The Woodside association sued several owners
to enforce the new leasing restriction. The Pinellas Circuit Court and,
later, the 2nd District Court of Appeal ruled in favor of those owners
and called the tougher restrictions on renting "arbitrary, discriminatory
and oppressive."
People who buy in a condo association have
a reasonable expectation that the deed restrictions that are in place at
the time of purchase will prevail, the appeal court said. "Otherwise the
rights and obligations created by a declaration (of condominium) could
be in a constant state of flux."
But the condo association appealed to the
Florida Supreme Court, and last year, the high court overturned the lower
courts. "The Condominium Act provides broad authority for amending a declaration
of condominium," the court said.
"The owners knew when they purchased their
units that they were subject to properly adopted amendments to the declaration,
and the leasing restriction was such an amendment. The restriction did
not violate public policy or the owners' constitutional rights," the court
said.
The court also said that since condo law
was created by the Legislature, any remedies such as grandfathering provisions
should be devised by the Legislature as well.
Judge Peggy Quince agreed with the majority,
but acknowledged the hardship to owners who purchased with the expectation
they could rent their units. "The amendment has deprived these owners of
a valuable right that existed at the time of purchase," she wrote.
She urged that "there should at least be
some type of an "escape' provision for those unit owners whose substantial
property rights are altered by amendments to declarations adopted after
they acquire their property."
Comley, 59, is a former nursing home administrator
who gained national notoriety in the 1980s as a nuclear power plant safety
whistle-blower and founder of a grass roots nuclear-safety organization
called We the People. His mother lives in Pinellas County.
Now he is trying to generate legislative
support for relief for those in his situation:
He has been in touch with Rep. Aaron Bean,
R-Fernandina Beach, who has written to House Speaker Johnnie Byrd urging
that the House Judiciary Committee "study the prospect of grandfathering
existing rental rights of existing owners."
Comley gained an audience in April with
Jacksonville Republican King, the Senate president, and statewide condo
authority Peter Dunbar to discuss his situation. A King spokeswoman said
their office "is looking into" the matter.
King has urged Sen. Alex Villalobos, R-Miami,
of the Senate Judiciary Committee to study the feasibility of grandfathering
existing rental privileges until an owner sells a unit.
"It's safe to say that the Legislature,
especially in the Senate, will spend some time debating the issue, looking
at the effects of what the existing law is and finding some equitable way
to protect both the buyer and the association," King said. "I suspect it
will be one of the first things we discuss in the upcoming regular session."
"The current law could be interpreted in
lots of different ways and is not clear," King said.
Besides the grandfather clause, King said,
another possibility is to develop a formula for associations to reimburse
owners when they are deprived of anticipated income because rentals are
disallowed.
Comley appeared at a town hall meeting
in August chaired by Rep. Julio Robaina, R-Miami, to hear complaints about
condo associations.
The Florida Association of Realtors is
considering looking into Comley's cause through a Department of Business
and Professional Regulation task force investigating community association
problems.
Comley says that as a Florida resident,
he is concerned about the economic impact on the state of the Supreme Court
decision. He fears that residents of other states who want to buy Florida
condos will go elsewhere when they learn that, although they may be allowed
to rent out their units now, that could change in the future. Comley offered
copies of letters sent by out-of-state residents to King, saying, "They've
put their retirement plans on hold until the law changes."
Comley, who intends to keep his condo at
Piper Dunes North, said he doubts that any legislation will be effective
retroactively, so it won't help him. "But it will help the person down
the road. Put yourself in our position," he said. "How would you like to
work for 40 years and have someone pull the rug out from under you?"
Read
: Florida Supreme Court Decision: Woodside v. Jahren |