April 2018 Newsletter

(Overnight Rental...continued from page 5)
take a vote of the members to amend its declaration,
the board of directors, upon a 14 day board of directors
meeting notice mailed to all of the members and
posted in a conspicuous place in the community, is able
to adopt rules and regulations governing the use of any
home subjected to the declaration for transient housing.
But, because the rules and regulations are adopted by
the board and not adopted by the members of the entire
community, then, upon a member’s legal challenge, the
outcome is not as clear. Upon such a challenge, the
court will analyze whether the board acted within its
scope of authority, whether the board exhibited arbitrary
or capricious decision-making, and whether the new rule
contravenes either an express provision of the declaration
or a right reasonably inferred therefrom. Therefore, at the
first available opportunity, the membership of the homeowners’
association should be provided the opportunity
to approve an amendment to the association’s declaration
so that the leasing restrictions are set out in the associations’
declaration of restrictions.
When the association is considering adopting either
a declaration amendment or new rule and regulation
governing a prohibition against transient housing,
the association should also consider at that time updating
its entire owner/rental approval process to include
prohibitions against purchasers and renters who have
committed crimes of moral turpitude, have a history of
significant financial irresponsibility, who lie on their sale/
lease application, or who do not meet the other requirements
such as length of tenancy (e.g., no rentals for less
than six months and only one lease per year). These
types of issues, and more, should be discussed with the
association’s lawyer.
Importantly, the time has come for every community
association to regularly monitor VRBO and AirBnB listings to
see if homes in your community are being advertised for
overnight rental purposes. If so, this should be brought
to the attention of the association’s board of directors
and manager.
To receive Rembaum’s Association Roundup directly
in your inbox, please send an email request to JRembaum@KBRLegal.com
or visit http://www.kbrlegal.com/
rembaums-association-roundup/.
Jeffrey Rembaum, Esq. is a community association lawyer with the law
firm Kaye Bender Rembaum, in its Palm Beach Gardens office. His law
practice consists of representing condominium, homeowners, and cooperative
associations, developers and unit owners throughout Florida.
He can be reached by email at JRembaum@KBRLegal.com or by calling
561-241-4462.
6