Eaton Realty Blog

​ ​ In real estate law, there is an old saying that property ownership comes with a bundle of rights. This bundle includes the rights of possession, enjoyment, exclusion, and disposition. In the modern world, however, the right to use your property as you see fit may be limited by membership in a homeowners' association (HOA). There are both benefits and drawbacks that come with HOA membership. One drawback includes an increasingly common restriction on property owners: the ability to rent out their property to short and long-term tenants. If your HOA has enacted a rental restriction, you should examine the governing documents to determine if this rule applies to your property. You should also be careful to read any proposed HOA amendment to ensure that it won’t affect your right to rent out your property if you choose to do so. At Eaton Realty, we offer a full range of property management services to landlords throughout Hillsborough County. In addition to day-to-day property management, we can also tackle issues related to HOA rental restrictions, helping you understand your rights and managing any HOA rental applications on your behalf. To learn more or to talk to a Tampa real estate agent about your investment property, contact us today. Get Help Navigating HOA Rental Restrictions In Tampa. Speak With Our Experienced Team › 813-672-8022 Understanding HOA Rental Property Restrictions Homeowners Associations (HOAs) are a common feature in many communities throughout Hillsborough County. A HOA’s role is to implement and enforce rules to protect the property value of homeowners in the neighborhood. HOAs also assess and collect fees from homeowners to pay for the upkeep of common spaces (like community pools and entrances) and other costs. While HOAs can be a great way to ensure that your property value isn’t diminished by something like a neighbor storing broken-down cars in their front yard, the rules imposed by HOAs can be onerous. Known as covenants, conditions, and restrictions (CC&Rs), these rules cover everything from the type and height of fence you can install, changes to the exterior of your home, and parking. The restrictions are designed to make sure that the community maintains its character, but they can also feel harsh when they prevent you from using your own property how you see fit. Recently, more HOAs have begun to adopt rental restrictions into their CC&Rs that are designed to limit homeowners’ ability to rent out their property. In many situations, these rules were not part of the original HOA documents. Instead, they are added as amendments to the HOA governing documents. HOAs usually enact rental restrictions when they start to notice a problem within the community. This could include a noticeable increase in short-term or vacation rentals or complaints from property owners about tenants not following HOA rules. In some cases, the HOA may seek to impose these rules simply because property owners in the community believe that it is better for all of the houses to be owner-occupied. Common HOA Rental Restrictions A rental restriction can take many different forms, such as: Rental caps limit the number or percentage of homes in a community that can be rented at the same time. A 20% cap is becoming increasingly common. This means that if a community consists of 500 homes, only 100 homes (20%) can be rented. If you want to rent out your house and there are already 100 houses rented in your development, then you will likely be placed on a waiting list until a rental “spot” opens up in the community. Lease review requirements are established to ensure that the HOA gets to examine and approve leases before they are signed. These rules often include a requirement to include language in the lease acknowledging HOA rules and mandating that tenants comply with the rules. Minimum lease terms are designed to prevent high turnover in rentals or short-term rentals. Typically, HOAs will set a minimum lease term of 6 or 12 months. Short-term rental bans are also common as a way to reduce or eliminate the possibility of homes in the community being used as Airbnbs or VRBOs. Typically, these rules prohibit a rental of less than 30 days. Waiting periods may be established to prevent property investors from buying a house in the community with the sole purpose of renting it out to tenants. These waiting periods mandate that owners occupy the property for a set period of time before they can list it as a rental. HOA Restriction Violation Penalties Usually, the HOA also requires property owners (or their property management company) to submit an application to the association for approval. A violation of these rules can lead to consequences, such as fines and fees, which can add up quickly. For property owners, these rules can seem (and often are) incredibly unfair. In practice, rental restrictions may mean that your investment property must now sit empty until one of your neighbors’ tenants moves out of their property. The rules are often subject to uneven enforcement, as some owners may be grandfathered into the old rules, or the HOA simply lacks the ability to consistently enforce the rules. If you want to list your property for rent in an HOA with a rental restriction, it is important to understand exactly what your rights are. Below, our experienced Tampa property managers walk you through how to navigate the process. How to Handle HOA Rental Restrictions Imagine this scenario: you buy a property in a gorgeous planned community. After a few years of living in your house, you get transferred to a different state. You decide that you want to rent out your house rather than sell it, but when you submit your application to the HOA, it is rejected due to a 20% rental cap. Your first (justifiable) response may be anger. After all, you own the property and shouldn’t be forced to sell it or lose money on it because of these rules. While the situation is frustrating, it isn’t a lost cause. Here is what you can do. Investigate To Determine If The Restrictions Are Accurate & Binding First, don’t respond in anger. If the HOA emailed you a rejection, respond to the email with a polite inquiry. Ask them to point you to the section in the HOA governing documents that contains the rental cap or restriction. Requesting more information isn’t being difficult. It is your right as a property owner! If the HOA wants to limit the way that you are using your property, you should know the legal basis for doing so. Too often, a HOA representative will tell you that something is a rule even if it isn’t exactly correct. That doesn’t mean that they are acting in bad faith, but they might not fully understand the rules themselves. You should make sure that you get the full governing documents so that you can read them for yourself. This should include: Bylaws Declaration of Covenants, Convictions, and Restrictions Rules and Regulations Amendments Leasing and/or rental policies Importantly, any amendments to HOA governing documents must be recorded with the county clerk’s office. If the amendments do not show a stamp with a date that it was recorded, then they are not binding. This includes any amendments related to rental restrictions. See If You’re Grandfathered In To Prior Rules Once you have the documents, it is time to read them closely. You should pay particular attention to the date that the rental restriction was enacted and compare that date to when you purchased the property. Under Florida HOA law (§ 720.306(1)(h)), any rental restriction that is enacted after July 1, 2021, only applies to a property owner who acquires title after the effective date of the governing document or amendment or to a property owner who consents to the governing document or amendment. In other words, if you bought your property in 2018 and the rental restriction was enacted in 2022, then it does not apply to you unless you consent or agree to the amendment. In other words, you are “grandfathered” into the rules that existed when you bought the house and are not subject to the rental restriction. If you were to sell the property, the new owners would be bound by the rules that existed at the time of the purchase. Typically, a change of ownership means that a person will be bound by the rental restrictions. However, this law also specifies that a change of ownership does not occur when a property owner conveys the parcel to an affiliated entity (such as a trust to hold the property) or when the property owner passes and their heir becomes the property owner. For example, if a parent dies and leaves the property to their adult child, then the adult child will still be grandfathered into the old rules. These details may seem technical, but they are important. HOAs can randomly impose rules on residents. This is particularly true when it comes to something like rental restrictions, which can affect you financially far more than things like rules about landscaping. Present Your Case To The HOA Once you have completed your review of the governing documents, the next step will be to compose an email explaining why the rule does not apply to your property. For example, you might state that your review of the governing documents does not show any recorded or enforceable rule on rental restrictions that applies to your particular property. State any additional facts that are relevant, such as: You bought your property before the amendment was enacted; You did not consent to the amendment; and/or The amendment was never recorded. In most cases, the HOA will usually back down, knowing that they can’t legally enforce the rule against you or your property. Bring In A Real Estate Lawyer If Needed You might need to consult with a real estate lawyer if the HOA continues to insist that you cannot rent your property. An attorney can advise you on your legal rights and options based on when you purchased the property and the governing documents. Bring In A Property Management Company To Negotiate For You If all of this seems a bit daunting, keep in mind that you don’t have to handle this or other rental property matters on your own. Our Tampa property management company is adept at dealing with rental restrictions and other HOA issues that may arise. Whether the HOA is trying to enforce a waiting period, rental cap, or some other restriction, we have the experience and knowledge to understand how to respond and advocate for your interests. How Eaton Realty Helped One Of Our Clients Continue To Lease Our property management team at Eaton Realty helps our landlords navigate HOA restrictions on a regular basis. One of our landlords was threatened with being added to a waitlist when the HOA implemented a 20% rental cap for the neighborhood. We responded immediately by providing evidence that the landlord had been renting the unit since 2020 and reminding the HOA that the owner could not be bound by the amendment under § 720.306(1)(h). ​ The HOA ultimately conceded, knowing that the owner was well within their legal rights and allowed the landlord to continue to rent the property. ​ If Eaton hadn’t stepped in, the owner likely would have joined the waitlist and may have been stuck on a waitlist for half a decade or more. Our team would be more than happy to assist you with your Hillsborough County rental property if you’re being unfairly held to restrictions that do not apply to you. We can investigate your case, compile evidence, and communicate with the HOA on your behalf. Simply reach out, and a member of our team can review your case. What Else Should Property Owners Know? Rules Can’t Be Changed Without A Meeting Or A Vote Florida law requires that a quorum of HOA members (as defined by the bylaws or 30% of property owners) must be present to hold a member meeting. Decisions that require a vote of the members must be made by a majority of the voting interests present at a meeting. If the HOA wants to amend the governing documents, then ⅔ of the voting interests of the association must agree to it. For homeowners, this means that the HOA can’t simply change the rules without holding a meeting and taking a vote. If you care about issues like rental restrictions, it is important to show up and to vote. It is also critical that you carefully read any proposed amendments to the governing documents. Rental Restrictions Can Be Stuffed In With Other Proposed Changes Much like government lawmakers will stuff numerous unrelated amendments into a single piece of legislation, it isn’t unheard of for HOAs to propose amendments with one main change highlighted when the amendment actually contains multiple items. For example, the HOA might propose adding a new feature to the community clubhouse - but that same amendment might also contain a rental restriction. This is why all Florida property owners who belong to an HOA should not only take an interest in what is happening with their HOA, but also review any proposed amendments carefully to make sure that they aren’t accidentally voting for a rental restriction. If you do vote in favor of this type of amendment, then it could be interpreted as consent, which means that you would be subject to the restriction. We know that getting involved in HOA matters can be a chore. Yet it is important because it affects the way you can use your property. At a minimum, you should never vote for any amendment unless you are absolutely sure of what it includes. Expert Property Management Help for Hillsborough County Landlords In some ways, HOAs can make property ownership a lot more enjoyable. In other ways, HOAs can be a huge pain, particularly when they attempt to restrict how you can use your own property. If you are dealing with a rental restriction matter with your HOA, don’t panic or get angry. We can help you navigate the issue and deal with other property management issues. Based in Lithia, Eaton Realty offers NARPM-certified property management services throughout West Central Florida. Our goal is to make it as easy as possible to own rental properties in the Tampa region, offering skilled services and advice to maximize your profits. Give us a call at 813-672-8022 or fill out our online contact form to talk to a member of our property management team. ​