HOA Q&A: Can the Association charge renters a 'resort fee'?

Editor’s note: Attorneys at Goede, DeBoest & Cross respond to questions about Florida community association law. With offices in Naples, Fort Myers, Coral Gables and Boca Raton, the firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning, and business law.

Q: Board members think we can charge owners a ‘resort fee’ payable to the Association to make money off rentals. Is that possible?  Where is it referenced if possible?

A: The answer to your question will depend on whether the association is a condominium association or a homeowners’ association, and, perhaps more importantly, what the governing documents of the community say on the matter. In most cases, a tenant has the same right to use the amenities as the unit owner, and no use fee may be charged to a tenant unless it is also charged to a unit owner.

With respect to condominiums, Section 718.111(4) of the Condominium Act provides that a condominium association may not charge a use fee to a unit owner for the use of common elements or association property unless: (1) the declaration of condominium allows it; (2) the charge has been approved by a majority vote of the association, or (3) the charge relates to expenses incurred by a unit owner who has exclusive use of the common elements or association property.

Note also that Florida law significantly limits fees that a condominium association may charge in connection with the lease or other transfer of a unit. Specifically, condominium associations are prohibited from charging fees in connection with the lease of a unit unless (1) the association is required to approve the lease, and (2) a fee for such approval is provided for in the declaration, articles, or bylaws. If such a fee is authorized, it may not exceed $150 per applicant, with spouses or a parent or parents and any dependent children being considered one applicant. Additionally, no fee may be charged for lease renewals with the same lessee or sublessee.

With respect to homeowners’ associations, Chapter 720 does not contain similar restrictions, however, the governing documents of the community may address use fees and transfer fees.

Regardless of whether the association is a condominium or a homeowners’ association, I recommend that the governing documents be reviewed by an experienced community association attorney before such fees are implemented.

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Q: What is your advice regarding the rules on condominium reserve funding for buildings that are one or two stories?

A: Section 718.112(f)2.a requires the budget of condominium associations to include reserve accounts for capital expenditures and deferred maintenance for roof replacement, building painting and pavement resurfacing, regardless of the amount of deferred maintenance expense or replacement cost, and any other item that has a deferred maintenance expense or replacement cost that exceeds $10,000. The amount to be reserved must be computed using a formula based upon estimated remaining useful life and estimated replacement cost or deferred maintenance expense of the reserve item.

The members of a unit-owner-controlled association may determine, by a majority vote of the total voting interests of the association, to provide for no reserves or less reserves than those required by law, or to use existing reserves funds for purposes other than purposes for which the reserves were intended. Note that a structural integrity reserve study (SIRS) and the reserve requirements associated with the SIRS are not required for condominium buildings less than three stories in height.

Lee-Anne Bosch, Esq., is a Partner of the Law Firm of Goede, DeBoest & Cross, PLLC.  Visit www.gadclaw.com or to ask questions about your issues for future columns, send your inquiry to: [email protected].  The information provided herein is for informational purposes only and should not be construed as legal advice.  The publication of this article does not create an attorney-client relationship between the reader and Goede, DeBoest & Cross, or any of our attorneys.  Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein.  The hiring of an attorney is a decision that should not be based solely on advertisements or this column.

This article originally appeared on Treasure Coast Newspapers: HOA Q&A: Can the Association charge renters a 'resort fee'?