Condo Q&A: The tenant generally takes the place of the owner when it comes to rights to use the common elements, unless the tenant waives those rights in writing.
STUART, Fla. – Question: I am the owner of a condo unit which I rent out to a tenant. The condo building has an attached parking garage where I have two parking spaces, as well as other amenities such as a tennis court and pool. Am I permitted as the owner to park my own car in the second parking space (my current tenant only uses one parking space) or use the amenities even though I don’t live there? – H.L., Miami, FL
Answer: Generally, when a condominium unit is leased to a tenant, the tenant takes the place of the owner with regard to the rights to use the common elements of the association property. However, there is a notable exception in the Florida Condominium Act. Section 718.106, Florida Statutes provides, “When a unit is leased, a tenant shall have all use rights in the association property and those common elements otherwise readily available for use generally by unit owners and the unit owner shall not have such rights except as a guest, unless such rights are waived in writing by the tenant.” Therefore, you would have to have your tenant waive their rights to the use of certain portions of the common elements in writing (i.e. waive the right to use the second parking space). Then you would still have the right to use that parking space as the owner of the unit even though you are not occupying the unit (subject of course to any other parking rules the association has).
Although it seems more likely that your tenant would agree to waive the right to use the second parking space since they are not using it anyway, the same process could be followed if the tenant agrees to waive their rights to use the other amenities. Section 718.106, Florida Statutes, further provides, “The association shall have the right to adopt rules to prohibit dual usage by a unit owner and a tenant of association property and common elements otherwise readily available for use generally by unit owners.” Therefore, you would still need to review your association’s governing documents to determine if the association has passed any such rules with regard to a prohibition on dual usage.
Question: What rights does a condo association have to enter my unit when I am not home? – G.P., Naples, FL
Answer: Pursuant to Section 718.111(5)(a), Florida Statutes, “The association has the irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit.” Essentially, the association has the right to enter a unit for the purpose of either performing its maintenance obligations as provided under the declaration, or to prevent damage to condominium property in the event of the presence of some hazard (e.g. fire, water, mold) that could spread to other units or the common elements. Associations will often require each owner to provide a key to their unit to the association so they may access the unit for these purposes.
However, except in the event of an emergency, the association is still required to provide reasonable notice to the owners or residents of the unit and to enter the unit during reasonable hours. There are additional rights granted to the association to access units in the event that the unit is deemed abandoned, but that is a subject for which a whole separate analysis would be necessary. Your declaration may also contain additional requirements with regard to access to units so be sure to read your governing documents if you feel that the association has entered your unit in violation of any of the foregoing.
Avi S. Tryson, Esq., is partner of the law firm Goede, DeBoest & Cross. 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.
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