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Real estate Q&A: Can I challenge homeowners association rules on renting?

Q: My homeowners association changed the rules and added restrictions on renting. I rent and count on the income for my retirement. I want to know specifically what they did and if it is enforceable. What do I do? – John

A: Your first step is to find out what rules changed and whether the changes were made correctly and enforceable. The easiest way to do this is to ask your management company for a copy of the new rules and documentation of the vote approving them. Often you will be referred to your community's website and left to find it on your own.

If they do not help you with this information, you will need to request access in writing. Then, if you are not given access to the documents in 10 days, your community can be fined. While you have a right to view your association's records, your community does not need to research your particular question for you, and you may be left looking through a pile of few boxes to find what you are looking for.

You will then need to review your community's documents and agreements to learn the procedure for making new rules. If the proper procedure was not followed, the rules would not take effect. This happens more than most people think but is rarely checked. While these documents can be long, most of my clients have found what they were looking for. If the rule was properly passed, you will need to figure out if the rule applies to you. It is easier with condominiums where the law is clear that rental restrictions do not apply to current owners who did not vote for the restrictions.

However, new owners buying after the rule was enacted will need to follow it. With homeowner associations, the law is less clear. In general, the law for HOA's tracks that of condos, but there are some differences. With condos, this "grandfather clause" is written in black and white, but there is nothing like that regarding HOA's. We lawyers call this an unsettled area of law, and cases regarding this issue get resolved based on the language of the HOA documents and the skills of the attorneys involved.

If you are willing to take the time, you may be able to challenge the new restrictions, at least as it concerns your house. However, it may be better to sell this property and buy one more in line with your needs.

ABOUT THE WRITER

Gary M. Singer is a Florida attorney and board-certified as an expert in real estate law by the Florida Bar. He practices real estate, business litigation and contract law from his office in Sunrise, Fla. He is the chairman of the Real Estate Section of the Broward County Bar Association and is a co-host of the weekly radio show Legal News and Review. He frequently consults on general real estate matters and trends in Florida with various companies across the nation. Send him questions online at www.sunsentinel.com/askpro or follow him on Twitter @GarySingerLaw.

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