Whether you live in an urban high-rise in the heart of a large city, or in a more spread-out suburban HOA development, security—for both property and physical safety—is an important issue in any condo community. Who can come in, at what times, how long they can stay, and how freely they can move about the property is of concern to any conscientious board/management team. In order to maintain a safe, secure building or association, administrators must draft and enforce clear rules regarding non-resident visitors and guests— while at the same time not overreaching and attempting to regulate how unit owners conduct themselves in their own apartments
Them's the Rules
Rules and regulations concerning guests are generally laid out explicitly in the governing documents of an HOA. Is there a limit on how long guests can stay? “Yes, the governing documents can restrict the length of stay of guests,” says Tajiana Ancora-Brown, director of communications at the Florida Department of Business and Professional Regulation (DBPR) in Tallahassee. “These issues are typically covered in the governing documents of the association, which become a contract when a person purchases their condominium.”
There is some leeway with how the rules can be implemented, but the professionals agree that it's advisable to have rules in place. “The association or board can really define the terms for what is a guest, how many times you can have a guest on the property for, say, a period of a year,” says Elizabeth Bowen, an attorney with the law firm of Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel, PA in Miami. “A number of our associations have a limitation on the number of unaccompanied guest visits that can be extended in a year. So, pursuant to the rules perpetuated by the board, you may be allowed to have an unaccompanied guest stay in the unit for a term of less than 30 days, three times a year. Or whatever they determine the rule is going to be.”
Depending on how the governing documents are written, there should be firm rules in place about guests—what they are, how they differ from short-term renters, and so forth—as well as the way illicit renters can be dealt with.
Having clear definitions and enforceable parameters is more important than laying out complicated timetables when it comes to controlling access and certain behaviors, says attorney Ramon C. Palacio, a partner with the law firm of Association Law Group PL in Miami.. “That is, while an arrangement spanning several months may at first glance be more indicative of a lease arrangement than if the stay was for just a couple of weeks, it is quite possible that a ‘guest’ occupying a unit is actually a short-term tenant. And, the owner is marketing the property as a vacation rental, which may very well be in violation of the association’s governing documents.”
Owners in Absentia
Generally speaking, a 'guest' is considered someone who stays for a relatively short period of time, while the unit owner is also present. Having their host on the scene creates a huge and obvious incentive for guests to be on their best behavior—and indeed, most of them are. “When guests are staying with an owner, rather than staying in the property alone, there may be fewer issues,” says Palacio. “The owner is—or should be—aware of the community’s rules and regulations, and what conduct is or isn’t acceptable, and is present to exercise some control over their guests.”
It’s when the owner isn’t there that problems can develop. Sublettors may not be as inclined to take rules seriously—and illegal sublettors have even less incentive to behave. This is not to say that all guests and sublettors will trash the joint; just that the people who truly have a vested incentive to follow the rules (and thus preserve the value of their investment) are the owners of the unit.
“When guests—even short-term ones—move in during an owner’s absence, a number of issues may arise, Palacio says, “ranging from the more easily-corrected—like placing of garbage by the curb on a non-collection day, for example—to conduct that creates a safety concern or nuisance, such as erratic driving or loud noise late into the night, which can be a significant concern, particularly when longer-term guests are involved. In other words, short-term guests may create concerns related primarily to rules and regulations while longer-term guests could give rise to safety and security concerns.”
So, although the financial incentive to lease a condo is obvious, short-term renters may be more trouble than they’re worth, for both owners and the HOA at large. “Many of our associations run into challenges with short-term rentals,” says Bowen. “And there are a couple variables that come into play. One is, is the owner in residence when these people are coming? Maybe he lives in New York, this is his second home. Maybe he's not going to be here, but he wants to send family down for two weeks during the holidays. The fine line is determining whether visitors are actually guests of a resident, or whether someone is running a short term rental out of their unit, which runs into all sorts of security issues for the association.”
Who Goes There?
Now, having a prohibition against long-term guests (or short-term renters, depending how you want to look at it) and discovering that someone is harboring them are two different things. While the theory goes that guests have no incentive to create a harmonious living space in a building, the fact is, bad behavior only attracts attention. Both guests and illegal sublettors can be quiet as proverbial mice (real mice, of course, are quite noisy). “Keeping tabs on short-term tenants really becomes a challenge to figure out who these people are coming through the door, and how they got the keys and the access to the property,” Bowen says. “It's really a difficult thing for associations to keep track of.”
According to Bowen, one way to track access is to keep tabs on the amenities that require keys or key fobs to enter. “If the association has access restrictions, if you need a key card to access the common elements like the gym or the pool, then guests might not have access—or they might seek access, which could tip the association off to their presence on the property,” he says.
Depending on the size of the complex, and the number of spaces out front, the parking lot is another place to spot would-be short-term renters. “Parking may also be a concern depending on the layout of the facility,” says Ancora-Brown. Sometimes getting rid of an unwanted “guest” is as easy as not renewing a parking pass.
“When an owner leases a home or unit, the rights to the use of amenities such as a pool or fitness room typically transfer to the tenant for the duration of the tenant’s residency in the community,” says Palacio. “Such provisions are commonly found in an association’s governing documents, and prevent the amenities from becoming overcrowded as a result of being used by both residents and non-residents. It's not uncommon for associations to limit the number of guests that may use such amenities.”
What if the worst case scenario—a guest causes major damage or legal trouble—happens? Where does the proverbial buck stop? “Ultimately the unit owner is going to be responsible for that, and typically you’ll find parameters in the governing documents that say if the guest of the owner of unit 101 damages the common elements of the building, the unit owner of 101 is going to be on the hook for that,” Bowen explains. This sobering fact is enough to deter many owners from renting out their unit.
But what if an enterprising unit owner is advertising his or her condo on a homeshare website like Airbnb.com, or vrbo.com? What if there’s a short-term rental operation going on in your condo complex right underneath your nose? What can you do about it?
“The governing documents of a condo or HOA are a contract between the individual owners and the association—thus the association has the right to enforce such contractual provisions,” Palacio says. “Such enforcement may include the levying of fines, suspension of the use of certain common areas, and legal action to enjoin the owner from the offending conduct, such as continuing to allow a guest to remain in the property after the association has declared that guest to be a nuisance as a result of their conduct.”
“With such contractual provisions, the association could seek money damages from the owner (against whom the association has the most leverage), or seek criminal and civil prosecution directly against the offending guest,” Palacio continues, “although this is typically not the best exercise of the association’s time and money, other than perhaps to work with the local police department to designate the offending guest as a trespasser (which requires a rather fact-specific analysis of the facts and circumstances).”
In extreme cases, the courts have to get involved. Florida tends to be pro-owner rather than pro-tenant, so in many cases using the courts is a cost-effective move.
“Regardless of the length of stay or the arrangement between the purported guest and the owner, the association does not become the landlord in such situations,” Palacio says. “However, some governing documents allow for an association to evict—in the landlord’s name—an unauthorized occupant pursuant to Chapter 83, Florida Statutes (the Florida Residential and Landlord Tenant Act), which is a significantly more expedient and cost-effective avenue for associations seeking the removal of unauthorized individuals.”
In the meantime, the smart play is to remember the words of Benjamin Franklin: “Guests are like fish. They begin to smell after three days.”
Greg Olear is a freelance writer and a frequent contributor to The South Florida Cooperator.