Q&A: Who Goes There?

At a recent board meeting, it was announced that the association of which I am a unit owner, would like to start collecting rent from tenants living in a unit where the owner is delinquent on their mortgage. I looked at the documents, and I didn't see anything on this, but a board member seemed to think they did not do it in past years because it was against our bylaws. I'm worried if we start collecting rent from this unit, it could invite legal trouble on the association. Also, a friend of mine mentioned that a renter in his association is a conflicted felon, and a few unit owners want to restrict them from continuing their lease. Isn't that a form of discrimination?

—Concerned in Coral Gables

“Many sets of HOA documents do not provide for the express right to collect rent from a tenant living in a unit where the owner is delinquent, but because there is a recent law from 2010 allowing associations to do so, now they may collect under the new law regardless of whether they have such right under their documents,” says Ben Solomon, Esq., a senior partner at The Association Law Group in Miami.

“Generally, when in conflict, federal, state, or local laws will supersede restrictions under an association’s governing documents; however, such association documents may be more restrictive then such laws, so long as they are not in conflict. Although an amendment to the document that is in conflict would be ideal (to make it comply with the current law) if the same can be achieved without overly burdening the association, technically the association does not need to do anything but comply with/follow the new law regardless of the conflict under their own documents. General rule on conflicts would govern, meaning that the new law would automatically supersede the conflict in the documents. An example of a conflict situation would be that some HOA documents prohibit having pets for example; however, there are legal exceptions under federal law for seeing eye dogs and other medically-necessary pets, which law would supersede the pet restriction under the documents (again, only if medically necessary though).

“Let’s say that an HOA document hypothetically stated that you may not rent to minorities in the community (which they don’t say that), then such restriction would not be enforceable because it would constitute discrimination under federal law. However, let’s say the leasing criteria under such HOA document states that you cannot lease your home to a convicted felon, then such restriction would not be discrimination and would be enforceable because convicted felons are not a 'protected class.' ”