PBC Owner: Condo says I can lease my unit, but renters can't use pool, etc. Can they do that?

Editor's note: The holidays can come with a calendar full of guests. Ryan Poliakoff is taking the week off, but this is the perfect time to rerun this column about rules governing guests and renters that ran originally in 2022.

Live in a home governed by a condominium, co-op or homeowner's association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers. 

Question: Our condominium has several recreational/common areas — swimming pools, saunas, tennis courts, a small gym/workout room, a billiard room, etc.

Our board limits usage to some of the areas to owners only. I was under the impression that tenants have the right to use all common/recreational areas that owners enjoy.

According to the Condominium Act, Section 718.106, Fla. Stat., "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."

So, this reads like tenants have rights to use our amenities — all amenities.

I feel like this means my friends, family, or rental guests (we allow short term rentals and when I rent, I require a signed lease) — whoever is staying with me (or in my unit under a lease agreement) — can use amenities. I pay for the upkeep of common property via my dues. I have rights to the usage and those rights transfer to my tenants and guests.

Am I incorrect? And, is there a significant difference between a tenant's right (if considered a lessee) and say, my adult children or in-laws who might happen to be staying with me a few days?

In other words, can our board actually deem an area specifically off-limits to anyone other than a deeded owner? And/or can they require the owner to be physically present? For example, can they require that that I, as an owner, have to accompany my guest or lessee to use certain recreational areas, which honestly would be impossible for my lessee since by definition they have leased my unit and I am not physically there. This is what our board has in fact done in regard to certain amenities (required physical owner presence for guest/tenant usage). It's been this way for years, but I feel like something is amiss here. Signed, J.M.

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Dear J.M.,While I agree that your association likely cannot limit use of the common facilities by tenants, I do think they can implement restrictions concerning use of the facilities by guests.

As you note, the Condominium Act expressly says that a tenant has all use rights in the condominium property unless those rights are waived in writing by the tenant (for example, in the lease). There's really no way around that provision, and in fact your association's policy doesn't make much sense, because it effectively prevents an owner from leasing their unit (no tenant is going to lease a unit if they can't use the facilities without the owner present as a chaperone), and it's likely in direct conflict with the terms of every lease. If the declaration allows leasing in the first place, I don't see how a rule restricting tenant use of the facilities would pass muster, either statutorily or as a matter of public policy.

However, I think guests are an entirely different situation, and that even your adult children or in-laws could be subject to rules that prohibit use of the common elements unless the unit owner is present. While most condominium declarations provide easement rights for guest access, those rights are subject to reasonable rules concerning the use of the facilities, and I do think you can make a good argument that, given the association's legitimate interest in protecting the common elements and securing the property, it is reasonable to require guests to be accompanied by the resident (whether an owner or a tenant, as the case may be for a particular unit).

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In fact, such rules are fairly common. Some condominium associations only restrict day visitors from using the facilities unescorted but allow registered overnight guests to use the common elements on their own. Other associations don't allow unescorted overnight guests, at all. I will tell you from experience that, without restrictions on guest use of the common elements, what you often get (particularly in oceanfront condominiums) is absentee unit owners who invite all of their friends to use their condominium at any time — and you end up with dozens of "guests" who have no knowledge of the community rules and no real interest in following them taking association resources from owners and residents who certainly deserve the primary opportunity to use the facilities.

I'm sympathetic to these kinds of rules, although there are certainly many different levels at which they can be implemented (for example, rather than banning unescorted guests entirely, a condominium could limit them to one or two day guests per unit, and then for no more than several days in a calendar year).

Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of "New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living." Email your questions to condocolumn@gmail.com. Please be sure to include your location.

This article originally appeared on Palm Beach Post: Can PBC renters, guests be barred from condo amenities? Expert weighs in