By Deborah Goonan, Independent American Communities
A Florida HOA board recently made an attempt to create an HOA restriction for “single family occupancy” of homes.
What’s noteworthy about this report is that, in this case, the “single family occupancy” restriction does not exist in the original governing documents, therefore the HOA had to obtain a supermajority vote of approval to add the restriction. Homeowner votes were split half and half, so the restriction was rejected.
In this case, homeowners voting against the amendment recognized that the reason for the board’s proposal was focused on a husband and wife couple who has opted to offer their home and financial support to some young adults attending a local college.
Here’s the article:
Mill Creek homeowners vote not to strengthen single occupancy regulations
Motion might have been prompted by family housing four Bayside College students.
by: Jay Heater Managing Editor
EAST COUNTY THURSDAY, AUG. 25, 2016
Mill Creek homeowners narrowly turned down strengthening its governing documents as they pertain to “single family occupancy” in a passionate meeting on Thursday night at the Oasis Church in Lakewood Ranch.
The Mill Creek VII Association held the special meeting so that residents could vote upon proposed amendments to the Declaration of Covenants, Conditions, Easements and Restrictions of Mill Creek Phase VII. The motion was voted down 72-69.
Apparently, Mill Creek VII HOA board is suspicious of the arrangement in the Mitchell household, and afraid that college dormitories or halfway houses will take over their neighborhood.
Had the “single family occupancy” restriction passed – or had it already existed in the original covenants and restrictions – the HOA board might have gone after the Mitchells with violation notices and punitive fines.
So the Mitchells are pleased that about half of their neighbors actually support their right to offer space in their home for four young adults.
What is the effect of a “single family” restriction?
The “single family occupancy” restriction is one of my personal pet peeves.
Can someone please tell me what “single family occupancy” means? In fact, can someone please define what constitutes a “family” in the 21st century?
Under a “single family” restriction, can two or more unrelated people ever live peacefully together under the same roof? Would such a restriction forbid live-in, unmarried, domestic partners? Ban roommates to help share housing expenses? Forbid foster children?
It’s definitely a gray legal provision, with plenty of room for abuse. And yet, some clever HOA attorneys seem to be able to find ways to get around Fair Housing laws. And because Association Governed Housing communities are considered private organizations, they can skirt around the Fifth Amendment Takings Clause, even though use restrictions – especially enacted after someone purchases a home – most certainly remove some very basic property ownership rights.
And sometimes these restrictions have the effect of excluding certain types of residents and tenants that don’t fit the HOA’s strict description of family. For example, in 2014, a Texas HOA used their “single family occupancy” restriction to force at-risk young women to move out of the 5 bedroom house they were sharing.
More ways that HOAs attempt to restrict who lives in your home, and why it may be perfectly legal
Additionally, mandatory Association Governed Housing communities frequently restrict a homeowner’s right to lease to a tenant. The HOA might say a minimum lease of 6 months or 1 year is required. Or the Association might put a cap on the maximum number of properties that can have tenants at any given time. So even if you find you need to lease your property after the quota is met, you won’t have the right to rent your property at all.
And here’s a column written by a Florida attorney with regard to regulating guests in a condominium association. Notice how the attorney instructs condo association boards to specify that anyone sharing space with the owner of a unit is considered a tenant vs. a guest if they share in expenses such as utility bills. That gives the condo association the power to require a copy of the lease, ostensibly for their approval.
A similar dispute is playing out in Minnesota, where a homeowner has been fined and threatened with HOA foreclosure after sharing her townhouse with roommates for the past two decades.
These issues raise some fundamental questions:
Should your Association be able to dictate who can live with you in your own home?
Should your Association be able to define what is meant by “family,” “guest,” and “tenant,” in such a way as to restrict a homeowner’s rights to use their private property?
Should your Association be able to override Fair Housing laws?