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  1. #1

    Default Can HOA Decide Who Lives in House

    My question involves an eviction in the state of: Florida

    This a continuation of this short thread http://www.expertlaw.com/forums/show...ht=#post625281

    Since the 15% townhouse rental limit has been reached within the community, the landlord is not allowed to rent to us (he has his own house so he'll never live there anyways). So now the landlord has changed our living situation from a rental to simply living there for free. In my opinion, our living situation is now no different than a house sitter staying long term or having an out of town friend stay for awhile.

    The Problem:
    The owner has received a letter stating that since he cannot rent to us, that we must move out within 30 days.

    Question:
    Since we are no longer renting and are now simply living there, can an HOA control who stays there? Is there a state statute that defines the conditions of an owner's right to decide who lives on his property? Is there a state statute that defines the difference between someone who rents and someone who lives somewhere with no ownership?

    I greatly appreciate any advice and can provide clarification.

    Thanks!

  2. #2

    Default Re: Can HOA Decide Who Lives in House

    The controlling obligation isn't in state statute, it's in the HOA agreement that the owner became party to when purchasing the property. THAT is the contract that the owner will be in violation of if the agreement has language that prevents non-owners from occupying the property.

    In my opinion, our living situation is now no different than a house sitter staying long term or having an out of town friend stay for awhile.
    The owner can attempt to fight the "for awhile" argument - but if you're living there will all your stuff and you're not maintaining another residence elsewhere, the argument is going to fail, since you'd obviously be living there and it would be your primary residence - meaning you'd NOT just be "house sitting".

    The owner is the one with a beef with the HOA. Your beef would be with the landlord who may have rented to you without the ability to do so under his HOA agreement.

  3. #3
    Join Date
    Mar 2008
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    Default Re: Can HOA Decide Who Lives in House

    Who can reside within the condo units are governed by the condo's CC&R's and enforced by the HOA.

    Setting a limit of from 15% to 25% for "rented out" units is pretty standard for condo complexes, as I'll explain. I am not aware of "state statures", but I am aware of FNMAE guidlines saying they would not provide mortages to complexes where the NOO "non owner occupied" percentages exceeds 50%. Some condo complexes negligient in enforcing the limits found unit owners unable to sell their units because buyers can't get mortgages as most banks sell their mortgages to FNMAE.

    I owned a condos to live in and I also rent them out. One complex I invested in had a 25% NOO limit, but came dangerously close to 50% because they grant waivers to owners who had to relocate, plan to come back, or other owners whose units are underwater, and cannot sell them in a bad market.

    When they say OO (owner occupied) vs NOO, it has nothing to do with anyone paying rent. The issue is whether the "owner on the deed" is living in the unit, not if he's collecting any rent. The reason FNMAE has such a rule is it is an observed fact that owners living in the units themselves take better care of it. So the issue here is if a unit is better off with a "tenant not paying rent", and I woud say the answer is NO.

    I bought a condo for my sister to live in "rent free" for a short while after here husband's sudden death, to help her out. As I paid for it, and if she is "not on the deed", then it is NOT COUNTED as an OO unit, which would lead to some negative issues. So I had her added onto the deed so it would be considered an OO unit, where the owner technically lives in it.

    Then are ways to get around the OO vs NOO rules, but it has nothing to do with a tenant paying rent or not. Some arrangements involve placing the ownership in a trust, and the "lessee" (tenant) is included as a 1% beneficiary. This workaround goes to whether the person living there is legally an owner or not.

    Now, I can't say if your condo CC&R's would allow this, or if the HOA would allow this interpretation. But paying or not paying rent has nothing to do with it.

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