Can I appeal an HOA covenant prohibiting long term rental of a home?

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Can I appeal an HOA covenant prohibiting long term rental of a home?

I just purchased a house in a resort neighborhood. I plan to occupy the house for retirement in about 2 years or so. I am currently working in Australia. I planned to rent this home out to long term tenants in the meantime. I was told after the close that the HOA has a covenant prohibiting long term or short term rentals. I was completely surprised by this. My agent, the sellers agent or the closing company failed to inform me of this until the sale was closed.The residents association met to consider my appeal and rejected it. What are my options?

Asked on April 26, 2012 under Real Estate Law, Florida

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

You most likely do not have any grounds to appeal the covenant: the fact that you were not aware of the covenant does not render it invalid or give you a basis for challenging it. Only if you could show that the HOA did something improper in how the covenant was adopted (e.g. it was adopted without the proper quorum or vote) would you likely be able to challenge it. You may be able to sue one of the agents or the seller for your monetary losses from being unable to rent the space on the basis that they failed to disclose material information prior to the sale. You should meet with a real estate attorney to discuss this situation and evaluate whether you have a cause of action. Your claim would be strengthened if you explicitly asked these parties about whether you could rent the home, or at least explicitly made them aware that you were planning to rent, since that could elevate their failure to disclose the covenant from an omission to an affirmative misrepresentation. Howeever, if you were provided a copy of the HOA rules prior to the sale, or had been given the opportunity to review them, that would substantially weaken your case, since in that even, you would have had a reasonable opportunity to discover the covenant yourself.


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