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AlF1 (Florida)
Posts: 3
Posted:
Sorry for the long and detailed post, but I am asking for input and advice. I may have to seek out legal counsel, but I am hoping it will not get to that point. I cannot see my association wasting money on such a trivial issue, and I am hoping that I would not have to spend my money as well. But I feel strongly about this issue and do not want to be bullied around because some board member thinks they can get away with it.
I am in a disagreement with my association regarding my status as a resident. I travel quite a bit, in fact I have been in Mexico for the last 3 months, and I do not spend much time at my unit. However, I have always considered myself a resident of Florida, and have all my legal documents with my unit's address, i.e. voter registration, driver license, vehicle registrations, homestead exemption and banking records. In my absence, I will occasionally have someone stay in my unit, strictly as a house sitter or guest. No one pays rent and the stays are usually short term, maybe a month or two. Most of the year, my unit is not occupied, unless I return, which I did most recently in November 2015.
The real issue here is regarding a small storage trailer that is legally registered to me and is in a common storage area that is used by "residents" for the same purpose. The association has sent me letters telling me that I must remove the trailer because they have determined that I am not a resident of the resort because they claim that I am "renting my property or having someone else living there". This is their wording as they quote Florida Statute 718.106(4).
In order to comply with the rules, I always have my guests stop in at the office to inform them that they will be staying in my unit. The office requires all guests to complete the form which is titled "Notice of intention to lease, rent or occupy apartment", regardless of whether that person pays rent or not. The association is waving this document claiming that someone else occupies the unit.
I am arguing that they are interpreting the law incorrectly which states; "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. .....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." The association rules address the useage of the common area for "residents only" and that the trailers must be legally and actively registered. However, that they are arbitrarily changing my "legal residential status" under their incorrect assumption that I am renting or leasing out my unit.
I have informed them of these facts that I have posted here. I am drafting a written response to their most recent letter, dated February 2016, which they claim they will be "turning the matter over to their legal counsel for compliance" if I do not remove the trailer within 10 days. My draft will include a definition of a "legal resident" which states "the permanent fixed place of abode at a specific address to which one intends to return, despite temporary absences or residence elsewhere :  a domiciliary house or habitation where one intends to dwell indefinitely despite temporary absences". I will also be addressing the requirement of a lease, which involves an agreement with an exchange of money, which there is none.
The association is assuming that when a unit is occupied by another person, it is automatically considered a lease and the unit owner must give up the right to use the common area.
So these are the facts and hope that I can get some input. Thanks in advance for your help.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By AlF1 on 03/30/2016 7:41 AM
"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.

1. Do you get your house-sitters to sign a waiver? Do you provide a copy to the office?
2. If you live there now, you are the resident. Their only claim should be when you have a house-sitter. But for that, see #1.

Sikubali jukumu. Read all posts at your own risk.
LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By AlF1 on 03/30/2016 7:41 AM
I am drafting a written response to their most recent letter, dated February 2016, which they claim they will be "turning the matter over to their legal counsel for compliance" if I do not remove the trailer within 10 days.


What I read into that is they have not sought legal advice on this and will not do so unless your trailer remains in place.

The problem I see is that there is no guarantee that the board's attorney will advise them properly. Since there is a lot of money riding on this my suggestion would be to hire your own counsel now and let him/her/them respond for you.

AlF1 (Florida)
Posts: 3
Posted:
I do not have them sign a waiver. I guess I could, but, I consider them as my guest and I would not have a guest sign a waiver.
Of course, I am one sided and believe that I am the resident. Regardless if I am not physically there, it is my legal residence. I have no other place that I call my residence.
Thanks for the input.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By AlF1 on 03/30/2016 2:27 PM
I do not have them sign a waiver. I guess I could, but, I consider them as my guest and I would not have a guest sign a waiver.
Of course, I am one sided and believe that I am the resident. Regardless if I am not physically there, it is my legal residence. I have no other place that I call my residence.
Thanks for the input.

The point I'm making is that IMO the waiver brings you into compliance. Why fight over the word "residence" if the waiver accomplishes your objective (the right to park where you want)?

Sikubali jukumu. Read all posts at your own risk.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Alf

The bottom line to a casual observer is you might well be renting/leasing the place be you the owner or not and this is probably the root of the issue. Sorry, but as a result of the "evidence" the burden of proof is on you.
AlF1 (Florida)
Posts: 3
Posted:
Do you all think that a "waiver" is a good idea?? And what would I include in this waiver? Would this waiver be enough to "prove" that the unit is not being leased or rented? Florida law says that the owner gives up their common area rights when the unit is rented. It does not address when someone stays as a guest.

If I were to use a waiver, I would assume that the waiver would say that the person staying in my unit is my guest and is not leasing or paying rent. I would also add that the guest understands that I am not giving up my right as a resident and that they must comply with all rules regarding guests??

Of course I would not do anything without consulting an attorney.

As of this post, the association has not taken any action. The trailer is still there and I have not heard from them or the attorney. Their first letter was in December and their most recent letter was in February. And as of April 1st, there is no one staying at the unit, and it will be unoccupied for a short time. I am curious to see how the association will react? There will be no other person there, and I am away, does that still mean that I am not considered a resident and that I have no right to use the common area?? How am I to "prove" to them that I am a resident and I intend to return? Almost like a cat and mouse game, don't you think??
NpS (Pennsylvania)
Posts: 4,216
Posted:
You probably want to consult a lawyer, but here are my thoughts.

Read the last sentence of 718.106(4). The concern is dual usage.

Example: Let's say there's a pool. My friend is living in my unit. I'm living in another house I own a few miles away. Under 718.106(4), we can't both use the pool. If my unit is occupied and I live somewhere else, then the right to use the pool goes to my friend (unless there's a waiver).

IMO, it doesn't matter if my friend is paying rent or not. He's living there, and unless there's a waiver, all the rights I had to use the pool go to him.

But ... if my friend signed a paper saying that he waives the right to use the pool, I can use the pool instead. With the waiver, there's no risk of dual usage. The HOA has nothing to complain about.

What happens when my unit is empty? There is no risk of dual usage. Technically, I'm the resident no matter where I sleep at night.

Just my thoughts. Like I said, should probably talk to a lawyer.


Sikubali jukumu. Read all posts at your own risk.

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