Home-sharing and short-term rentals have steeply risen in recent years thanks in part to websites such as Airbnb.com, VRBO.com, HomeAway and similar sites. The rise in use of these websites causes significant issues for community associations, such as those involving privacy, security, traffic-control and parking. Where the restrictive covenants are silent on the issue of short-term rentals, any ambiguity as to whether short-term rentals are allowed generally must be resolved in favor of the homeowners’ free and unrestricted use of the property. That being said, many community associations and/or neighboring homeowners often believe that short term vacation rentals are forbidden by the association governing documents, as most governing documents prohibit “commercial or business use” and restrict the property to “single family residential use” or some similar variation thereof.
The First District Court of Appeal ruled in a case originating out of Walton County in 2017 that short-term vacation rentals do not violate restrictive covenants requiring property to be used only for residential purposes and prohibiting its use for business or commercial purposes. This case appears to be a matter of first impression in Florida. The critical issue considered by the court in determining whether short-term rentals are residential uses of the property is the character of the actual use of the property by those residing thereon – i.e., whether the renters are using the property for ordinary living purposes such as sleeping and eating. The duration of the rental was not deemed a determining factor. The court noted that the nature of the property’s use is not transformed from residential to business simply because the owner earns income from the rentals or pays a lodging tax. Where there are several indicia of a business enterprise, however, other Florida courts have found violations of residential-use-only restrictions.
As to the restriction mandating single family use, Association documents typically do not define the term “single-family,” and there is no common-law interpretation of “single family” in the community association setting. Applicable local zoning ordinances may or may not provide a relevant definition of “single-family.” Nevertheless, most Florida cases construe the “single family residence” or other similar restriction as restricting only the types of structures allowed on the premises rather than who may use or occupy it.
Nuisance restrictions are also contained in most associations’ governing documents, but these provisions are typically very basic and provide little guidance in determining what constitutes a nuisance. Thus, unless the short-term renters are carrying on illicit behaviors and/or causing loud noises at all hours of the night, it would be difficult to use the provision as a bar to short term vacation rentals. To add to that difficulty, most such renters usually will have departed before any enforcement action is even begun, much less completed.
An association can amend the governing documents to prohibit short-term vacation use, but adding such a restriction will typically require a supermajority approval. For example, under the Florida Condominium Act, an amendment that prohibits owners from renting their unit, alters the duration of the rental term, or limits the number of times owners are allowed to rent their units during a specified period requires approval by two-thirds of the unit owners (unless otherwise specified in the governing documents), and is applicable only to owners who consent to the amendment and those owners acquiring title after the effective date of the amendment. As for homeowners’ associations, the governing documents will generally specify the percentage approval required to amend the governing documents, and if no threshold of approval is set forth, then the Florida Homeowners’ Association Act requires the approval of two-thirds of the voting interests to amend the governing documents.
In many instances, associations may assuage the effects of such rentals by adopting rules regulating the manner in which vacation rentals are operated and charging fees to accommodate for additional burdens borne by the association. Any such rules, however, may not effectively prohibit the use of such vacation rentals, must be reasonable, and must be consistently applied to all owners.
SIMPLIFIED AND UNCONTESTED DIVORCES IN FLORIDA
By: Casey Jernigan King
There are two types of divorce under Florida law: a simplified dissolution of marriage, and a regular dissolution of marriage (which may be contested or uncontested), both of which are handled by the Florida circuit courts. In order to be eligible to obtain either type of divorce, the parties must establish that they are married, one spouse has resided in Florida for at least six months prior to filing for divorce, and the marriage is irretrievably broken. Moreover, in simplified and uncontested regular divorce proceedings, spouses must be in agreement on all details, including, without limitation, division of money and assets, division of debt and liabilities, child custody, parenting arrangements, child support, division of personal items, and entitlement to tax exemptions.
Generally, spouses seeking a simplified divorce in Florida must meet the following criteria: (a) both spouses agree the marriage is irretrievably broken; (b) there are no minor children from the marriage; (c) the wife is not pregnant at the time of filing; (d) both spouses complete a financial affidavit, which is a written affirmation regarding property and finances, unless properly waived by the parties; (e) both spouses complete a property settlement agreement that settles all property issues (even if the spouses do not own property); and (f) both spouses appear at the final hearing, unless a formal hearing is properly waived by both parties. This option appeals to couples who wish to amicably end their marriage and are willing to cooperate with one another to that end.
In an uncontested regular dissolution of marriage, only one spouse (the petitioner) files for divorce against the other spouse (the respondent). Once served with the divorce petition, the respondent spouse must file a written answer. Similar to the simplified divorce, in an uncontested regular divorce, the spouses must execute a marital settlement agreement resolving all issues of marital property, marital debts, and minor children from the marriage. The spouses must also complete a financial affidavit within 45 days of service of the divorce petition. If there are minor children, an uncontested regular divorce will also include a detailed parenting plan. This type of divorce is extremely beneficial when properly executed, because the entire case is settled prior to filing the petition with the court; thus, such cases quickly proceed to finality, are much less complicated, and much more cost effective.
Harrison Sale McCloy Attorneys at Law can provide you with additional information and the firm offers a flat fee for your uncontested/simplified divorce case to help you and your spouse get through this process as quickly and as cost-effectively as possible. www.HSMcLAW.com
Harrison Sale McCloy Attorneys at Law has offices in Panama City, Santa Rosa Beach and Destin. Their areas of practice include Association Law, Business & Commercial Law, Civil & Commercial Litigation, Elder Law, Employment Law, Family Law, Health & Hospital Law, Insurance Defense, Local Government, Mediation and Dispute Resolution, Probate & Estate Planning, Tax Law, Real Estate & Land Use and Wealth Preservation. Since 1984 Harrison Sale McCloy has represented and advised businesses, local government and individuals throughout Northwest Florida.
PANAMA CITY OFFICE:
304 Magnolia Avenue
Panama City, FL 32402
Phone: (850) 769-3434
SANTA ROSA BEACH 30A OFFICE:
2050 County Highway 30A West, Suite M1-109
Santa Rosa Beach, FL 32459
Phone: (850) 650-0077
35008 Emerald Coast Parkway, Suite 500
Destin, FL 32541
Phone: (850) 650-0010