Overcrowded Condo Units -there goes the neighborhood?

The following was an actual letter to a condo association board 

(names are changed to protect privileged information) 

“Occupancy-by-the-numbers”, trying to restrict the number of people living in a single condo unit or a single family home is one way to suddenly find yourself in court.  A sluggish real estate market doesn’t change the fact that families find themselves needing to relocate. If they cannot sell their home, they will rent it in order to pay the mortgage. 

In turn, the neighbors they leave behind will pressure their association boards to contral the quality of those renters in order to keep property values up and to maintain the quality of the community. Association boards will need to be careful, however, that they do not attempt to control rentals to the degree that they end up violating state and federal housing laws.   

Occupancy restriction laws are well established. Restrictions based on family ties, for instance, do not hold up in any U.S. courtroom. It is impossible to define “immediate family” or any other phrase which attempts to narrow the definition of what constitutes a “family.” First cousins are considered “immediate” in some families and many households now include three-generations living under one roof. 

Three persons per-bedroom may sound crowded to some people. Not to my mother, though. She was the fourth of seven kids growing up in an 1800 square foot Kansas City home.  One friend of mine is the third of NINE children. A former co-worker who, a member of the Church of the Latter Day Saints, had five children of his own and adopted 2 more, then his Dad died and his Mom came to live with him, too. 

In the case of The Association, any limitation passed by the membership which places limits of 3 people-per-bedroom is actually “pushing it”, legally. The smaller the number, the more likely the rule is to be challenged on religious grounds (is it the same as saying, “no Mormons or Catholics allowed?”); challenged on racial grounds, (Hispanics and African Americans generally have larger families); and may be challenged by people already living in The Association, (it started out as only four people, but then the oldest kid moved back in with a new baby, the grandparents had medical problems so they moved in, and then the baby’s father showed up, too. And, oh yeah, he doesn’t have a job.) 

Age restrictions are allowed because they represent an entirely different “legal-animal”. Age restrictions hold-up under legal scrutiny if the community started out with the restrictions already in place and every buyer was notified before closing the sale. You cannot impose such a restriction later, retroactively.  In other words, only new residents would have to qualify as the above-50-set. 

There is a way to do it, though. A 3-per-bedroom rule change may pass muster on the grounds of safety, health, nuisance and so forth. Condominiums are given some additional leeway because of the close-quarters that go with condo-living. But attempting to restrict, retroactively, a 2-per-bedroom rule, for instance, and an association runs an increased risk that someone will challenge the rule’s legality arguing the rule’s existence is based on some reason other than maintaining “peace and quiet” or the capacity of the plumbing. 

As for requiring proof of legal entry into the U.S., I will say that putting such an amendment into a declaration of condominium or covenants is a place where no Association should want to go. 

Once, I talked to a man who was visiting Florida from Holland with his family. He was “visiting” for four months! He didn’t have a green card, a driver’s license or anything other than a passport (which was not even stamped because it doesn’t have to be) to show that he was in the country “legally”. It is not required in the U.S. He and his family of four were staying in a rented condominium. 

If he had been turned down as a tenant by the association where he stayed, he probably would have simply gone somewhere else. The real threat of legal action in this situation comes from the owner of the condo. He just lost a tenant and maybe didn’t make his mortgage payment because of it. He might be mad enough to challenge the restriction.

Foreign visitors are not required to prove that they are properly present in this country. (At least, not to the Holiday Inn, Avis, Disney World, or to condo associations.) In fact, the Florida Department of Tourism spends a great deal of money encouraging them to come to the state, stay, and spend as much money as they like while they are here. 

Unit owners could potentially pitch a fit if an Association interfered with their right to lease, rent or otherwise legally make a profit from their property. Requiring renters to show proof that they are legally present in the country is constitutionally unenforceable. If a unit owner challenged it, they may even get the A.C.L.U. to provide legal services at no charge.  

Condominium restrictions hold up if they are reasonably based on health, welfare, safety, nuisance, or preservation of property values.  In order to institute such rules without a required vote on an amendment change to the declaration, there must be no conflict with the other governing documents and the imposed rule must, practically speaking, have an advantage that is so obvious, it would not even require an explanation to your average person. 

If it falls into some “gray area” then an amendment is required. Or, it may be patently discriminatory against an identifiable interest group. 

These are some of the considerations every association should consider before changing their rules or amending their declaration.