Category -> CAN FL Alerts
Renters Coming to a Home Near Yours!
By Alan B. Garfinkel, Esq.
During the 2014 Legislative Session, a quiet battle raged between the Short Term Vacation Rental Industry and local governments. At issue on the Short Term Vacation Rental side was the property owners’ right to purchase a home or condominium anywhere in the state and then rent that property out on a short-term basis. On the other side, local governments and their rights to regulate business usage in a residential setting.
Imagine a quiet association neighborhood where a 4 bedroom 3 bath house is sold. The neighbors see signs of internal construction and look forward to meeting the new neighbors. Within a couple of weeks, 8 strange cars are parked outside and the cars change every couple of days. The 4 bedroom home is now an 8 bedroom home with each of those bedrooms rented out over the internet to people from all over the world on a short term basis. Trash piles up outside, music is blaring and people are coming and going at all hours of the day and night. An ever changing array of strangers are using your community’s facilities, including the pool and tennis courts. When the board tries to enforce parking restrictions or other rules, it is informed that the house is a vacation rental and the rules cannot be enforced! The board then goes to the local municipal and county government only to be told they cannot help!
SB 356 granted local governments power to create local ordinances regulating vacation rentals. However, there could be NO regulation regarding the duration or frequency of the rentals. CAN became involved in this issue because we heard from community associations and CAN Members who were frustrated when association rules and regulations were violated with no available remedy.
SB 356 was passed in the closing days of the 2014 Legislative Session. However, the battle still rages in the courts. This Bill was spearheaded by the Flagler County Commission and had powerful Bill sponsors in both the House and Senate. Once the new law went into effect on July 1, 2014, Flagler County was able to create and enact an ordinance that required owners engaged in short term vacation rentals to:
- Obtain a short-term vacation rental certificate from Flagler County;
- Obtain a business tax receipt from Flagler County;
- Obtain a Florida Department of Revenue certificate of registration for purposes of collecting and remitting tourist development taxes, sales surtaxes, and transient rental taxes;
- Obtain a Florida Department of Business and Professional Regulation license as a transient public lodging establishment; and
- By demonstration through an affidavit, maintain initial and ongoing compliance with the short-term vacation rental standards contained herein, plus any other applicable local, state and federal laws, regulations and standards, to include, but not limited to, Chapter 509, Florida Statutes, and Rule Chapters 61C and 69A of the Florida Administrative Code.
The County Ordinance went into effect on February 19, 2015, and shortly thereafter was challenged in court by the filing of an Emergency Motion for Preliminary Injunction. The Emergency Motion asked the Court to determine if the county had the authority to regulate short-term vacation rentals, and if the county had such authority, was that authority exceeded by the ordinance passed.
The Circuit Court of the 7th Judicial Circuit in and for Flagler County ruled on the Motion, and determined that the County did indeed have the authority to regulate short-term vacation rentals, and the ordinance did not exceed that authority. While this is the first court decision rendered on the legislative change, there is at least one more case pending in the courts. As such, it remains to be seen how the case law on this issue will ultimately affect the regulation of short-term vacation rentals by local and county governments. Each county and local municipality will likely tackle the industry through a series of regulations.
How will this new law affect my community association?
Many association governing documents contain restrictions limiting short-term rentals, it is often impractical for associations to pursue these types of violations because by the time the board is aware of the existence of the violation, the short-term tenant is gone – in effect curing the violation. For this reason, SB 356 and the court ruling above interpreting its application, are positive developments for community associations facing these prickly issues. Since there are only a handful of local and county governments that have passed ordinances pursuant to SB 356, relief for community association neighborhoods is not likely to come quickly.
However, if your community association is facing short-term vacation rental issues, you now have a new tool in your tool box.
Yours in community,
Alan B. Garfinkel, Esq.
Katzman Garfinkel, Founding Partner
and Community Advocacy Network, Chairman
Source: Can FL Alerts