Non-Owner Residents A Look at Who Can Occupy Your Unit

Aside from yourself, who exactly may live in your condo or co-op unit? While you as the owner might believe you have the sole authority to make that decision, most (if not all) condominium and co-op properties today have policies spelled out in their governing documents that determine the answer to that question. 

“In condominiums,” says Ken Direktor, an attorney specializing in common interest community law with Becker & Poliakoff in Fort Lauderdale, “these restrictions are typically found in the declaration. In co-ops, they’re in the bylaws, rules or proprietary lease.”

The Nature of Restrictions

According to Direktor, “These restrictions tend to fall into the following four categories: The first sets a minimum and maximum term for leases. The more important of the two is the minimum lease term, because it sets a baseline for how frequently you can lease.” Typical minimums are three to six months, and the maximum is usually one year.

The second component, explains Direktor, “is a restriction on how frequently you can lease your unit. Most restrict you to once in a 12-month period.” What that effectively means is that if you lease your unit for one year, and one month into the lease your tenant leaves, you will not be able to lease again for 11 months.

A third common restriction, Direktor continues, “prevents you from leasing for a specific period of time from when you took title.” For example, you cannot lease out your unit for the first year after you purchase. This rule is designed to encourage owner occupancy. 

This sometimes poses a problem in Florida, where many units are investor-owned. “Generally speaking,” says Direktor, “there are some buildings that were developed and marketed as investment properties. In those cases, most of the owners bought with the mindset to rent, so therefore the prevailing philosophy in the property is that of an investor-type building, but that is not the rule. In Florida, in most buildings, both condo and co-op, the owners use the unit as a primary or secondary residence, meaning that they’re snowbirds and they want to encourage owner occupancy and discourage rentals or transients.

“Lastly,” he adds, “some associations are also looking to impose restrictions based upon the number of units in the community that can be leased at any one time.”

The Millennial in the Guest Room

Particularly in condominiums, unit owners have a right to lease out their units, with some reasonable level of restrictions as outlined above. But what about other potential non-resident occupant situations? What if your adult children move back in? What if an aging parent becomes too frail to live alone? What if you want a roommate, or your best friend from college wants to stay in your unit while you’re in Paris? There’s a contingency for every one of these and more.

A fact of life today is that many of us have grown children who are unable to afford to live on their own and we want to help them out for a while. Will your condominium or co-op permit junior to camp out in the guest room?

Andrew Szaroleta is Regional Director with FirstService Residential in the Tampa-St. Petersburg area. He manages numerous condominium properties, both high-rise and garden-style buildings. “Usually children moving in are a logistical problem,” he says.  Many of the properties he manages utilize key fobs for entrance into the building or community. “Fobs require background checks There also may not be sufficient parking and the adult children of our residents would need to use the guest spots, which can cause a problem. What we usually do is try and find someone who has two spots but only one vehicle, and put the two residents together and hope they can work out an arrangement.”

Marcy L. Kravit, a professional property manager with AKAM On-Site in the Miami-Fort Lauderdale area, concurs with Szaroleta. Additionally, she explains, the long-term presence of the grown children of residents as residents causes an overall “increase in the use of common area amenities such as swimming pools, tennis courts, fitness centers, and can cause an increase in wear and tear on the property.”

“Very few communities, though,” says Direktor, “could get the membership required to adopt a restriction that didn’t allow member’s children to live in or use their units.” Additionally, he explains that in 55+ communities, residents under 55 are not restricted from living in the units. Only one owner and occupant of the unit must be 55+, as required by Fair Housing laws. If there isn’t one resident/owner in residence, the situation may be otherwise regulated by the condominium’s governing documents.

Dear Old Dad…or Mom

An often-challenging reality today in addition to adult children who may want to camp out in the guestroom for a while is the parent who can no longer be on their own. Assisted living facilities are not for everyone, for many reasons. What position will your condo association or co-op corporation take in the event you want to move your mother, or father-in-law into the second bedroom? A lot of their response will have to do with the functionality of that person.

As is the case with adult children, moving a parent into one’s home can be taxing on the community in terms of public spaces and parking arrangements. Szaroleta says, “Boards need to be more lenient though, with these situations. Home health care aides can be a problem with the parking the same way children can be, especially if the move is permanent.” As concerns the health care workers and security, he says, “we clear the workers by background check through the home health care provider companies.”

Kravit notes similar concerns. “Moving in an elderly parent may create an increase in home health aides visiting the unit to care for the elderly on a 24/7 basis. In addition, seniors have a tendency to cause potential fires, forget to turn off water in bathtubs, etc. Alzheimer’s and dementia patients, sadly, may leave units and wander throughout the building. Moving in an elderly parent may require more handicap spaces and wheelchair ramp access,” resulting in increased costs to the community.

Direktor says he has never seen a rule adopted by a condo or co-op against moving in an elderly parent. “However, if you don’t take care of your elderly parent properly, it can become a problem with the community that would need to be addressed. As for hired help, in some communities that potentially could become a problem too, depending on what they might be entitled to.” For instance, can the elderly parent visit the pool in a wheelchair, and can the home health aide stay with him/her? This would fall under the Fair Housing Act.

The bottom line is how the bylaws or other documents define family relationships. “For many people, Florida is a state you visit more than live in,” says Direktor. “Considering that the economic recovery has been primarily investor-driven, I don’t think there is sentiment to say you don’t have the privilege to use your unit by allowing a friend, not just family, to stay as a guest.” As concerning families, Direktor explains, the definition usually includes spouses, children, grandchildren, parents and grandparents, and can be extended if an association sees fit.

Short-Term Rentals

One of the hottest hot-button issues in the past few years has been Airbnb and other types of short-term rentals. The vast majority of associations and other common interest communities will not permit them, and basic leasing and/or sub-leasing rules and requirements pretty much prohibit them in other types of housing.

“Minimum rental terms have preempted the Airbnb problem,” says Szaroleta. “We’ve uncovered them a number of times, and the board at the property has sent out a notice [to the unit owner in violation]. It’s seriously frowned upon. Beach communities tend to be more lenient though, because the original developers allowed subletting in the documents. Communities are trying to change this now.” Kravit adds that in her experience, “Airbnb is not permitted in most condos due to short-term rental restrictions.”

One interesting turn on this problem is whether, as in some localities outside Florida, an Airbnb-type rental would be permitted if the unit owner remained in the unit during the rental. The answer is a resounding no. “Most condo documents say you can’t lease a portion of a unit,” says Direktor.” That clearly applies to your second bedroom. This also prohibits roommates and boarders.

Enforcement and Security

Both Szaroleta and Kravit recommend the use of fobs in security arrangements. Kravit also suggests making use of software programs such as BuildingLink. Cameras are also recommended, but associations must be cautioned to keep them pointed only toward common areas – never into or at the front door of any particular apartment.

“Security matters to owners,” says Direktor. “Occupancy restrictions matter, because they have a direct effect on the quality of life at the community and the ability of owners to use their units freely. Occupancy restrictions are among the most important of any restrictions in a co-op or condo. They really need to be addressed comprehensively, not one piece at a time, and they need to be addressed with input from the community and drafted by someone with experience representing community associations, so they say what you intend them to say and they don’t go foul of the Fair Housing laws or other legal impediments. The goal is to strike a balance between owner occupancy and security and some level of reasonable use for all the owners,” whether occupant or investor.              

A.J. Sidransky is a staff writer/reporter for The South Florida Cooperator, as well as a published novelist. 

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Comments

  • Can a mgmt co hold up a sale of a co op for being vindictive? I sold my co op a month ago and mgmt co keeps asking title co.for the same papers over and over.What can I do.??? She has all the information and has already cashed a $ 200.00 check for doing back ground check 2 weeks ago. Please help!