FL HOA rejects “single family” occupancy amendment to CCRs

By Deborah Goonan, Independent American Communities

image

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.

Read more:
http://www.yourobserver.com/article/mill-creek-homeowners-vote-not-strengthen-single-occupancy-regulations

 

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?

 

Advertisements

7 Replies to “FL HOA rejects “single family” occupancy amendment to CCRs”

  1. The legal intent of the restriction on rentals goes back to the FHA/HUD and lenders wanting restrictions on the number of rentals in a community in order to protect the value of mortgaged properties within the community. Renters don’t typically take care of rental properties and their behavior can make it difficult to control without police action. Mortgage companies don’t like it when you turn your family home into a rental home for the same reasons. Also, it involves risk of losing your insurance policy when the insurance company finds out it is a rental home.

    FHA has unfortunately loosened their restrictions now on the number of rentals allowed in a community. HUD has issued a Fair Housing letter warning that rental discrimination cannot be based on a criminal record. I have been told this policy does not include active criminal activity.

    Like

    1. Good points about FHA/HUD rules.

      I agree with you that it’s counterproductive to reduce owner-occupancy rate requirements for condo associations from its current 50% to 35%. I can’t say that all renters do a poor job of maintaining the properties — some renters are better than some sloppy owners. The peron ultimately responsible for maintaining a home/condo and paying asesssments is the landlord/unit owner. A tenant is only able to do general housecleaning and perhaps lawn mowing, unless that’s covered in the rent.

      Ditto for prescreeing tenants. If the owner fails to be a responsible landlord, then both tenants and the Association suffer the consequences.

      The HOA/Condo indsutry created the rent restriction controversy by selling thousands of units to people who could not truly afford homeownership, and by creating an oversupply that was then impossible to sell (without taking a financial loss) when the market tanked.

      Because voting rights (power) in an association is tied to shares of property owned, it encourages investors to buy as many units as possible in order to gain control of the Association. That creates more rental properties, too, and increases the likelihood of special assessments, forced termination and conversion/redevelopment. Huge risk for condo owners.

      Like

      1. Many association rules, including the one I am in, do not allow cumulative voting shares. Also, one vote per owner-townhouse is allowed, regardless of the number of owners on the deed.

        Like

      2. Most associations that I am aware of assign one vote per unit or assign votes per proportional shares (square footage of a condo unit). Some cooperative associations limit the number of votes any one person can accumulate, regardless of number of shares held. But this is uncommon.

        This is not to be confused with the concept of cumulative voting as defined by the SEC https://www.sec.gov/answers/cumulativevote.htm

        Many associations disallow cumulative voting. But they do allow the owner of property to accumulate votes for each property (unit/share) owned.

        Like

  2. It seems, that HOA Attorneys go to far in order to maintain their lifestyle by forbidding your lifestyle in your personal home in these Homeowners Association governed communities. Placing such a huge gray term with misinterpretation will lead to court, more money in the these attorneys pockets, and still these homeowners association by all rights are at the end of a losing battle, not only on the Homeowners but also on the HOA itself, with the cost of taking any homeowner to court. The winner will always be the HOA attorneys, while the very people that pay dues and the actual homeowner in these cases end up on the losing end, due to the cost associated with these cases. Notwithstanding the Federal Housing Laws should be adhered to even in a private community. Pretty soon due to Federal Laws the banking business will stop lending money to any buyer from buying a home in a homeowners’ association. I am glad to see for once one HOA has come to their senses; it would have been their own undoing. Would really like to know who was the person who brought this attempted amendment to the BOD.

    Like

      1. I think alternative dispute resolution (arbitration or mediation) should be an option, though not an absolute requirement. The facts and cirumstances in each case are unique. Settlements through ADR should be openly disclosed so that owners and buyers could see the details of how the matter was resolved. No mandated gag orders.

        Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s