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Regulation of Vacation Rentals, HB 1011 and SB 1128

It’s not the first time a bill regulating vacation rentals has been proposed by the Legislature, and it’s likely not the last. On the heels of last session’s failed Senate Bill 824 comes Senate Bill 1128 and the companion House Bill 1011, both of which again seek to preempt the regulation of vacation rentals to the state by prohibiting local laws and ordinances on short-term vacation rentals.  Announced today, HB 1011 is up for vote in the Government Operations subcommittee on February 4, 2020.

Often facilitated on internet platforms such as Airbnb and Vacation Rentals By Owners (“VRBO”), the online platforms that help people rent homes for short stays are ubiquitous. Some communities encourage the opportunity for rental income. For many others, however, short-term rentals have become a persistent problem, with the impacts felt in a number of ways: the nuisance of a constant turnover of renters; noise complaints; damage to the common areas, and a general discomfort of strangers coming in and out of the community. As indicated by CALL’s recent Airbnb Survey, 89% of respondents wish to regulate or prohibit these sort of rentals in their communities. CLICK HERE to read the results from this survey. Many community associations do just that by including provisions in their governing documents which either prohibit short-term rentals or include minimum lease terms. However, if this year’s set of bills are successful, the authority to impose such restrictions may come into question.

Senate Bill 1128 and House Bill 1011 seek to amend several Florida statutes addressing vacation rentals by giving the power of regulation, licensing and enforcement to the state rather than individual municipalities or other local entities. The argument set forth by the bill sponsors, Senator Manny Diaz (Miami Dade County) and Representative Jason Fischer (Duval County) is that there is a constitutionally protected property right for owners who choose to use their property as vacation rentals, and regulation of such should therefore be preempted to the state. On this basis, the bills prohibit a local law, ordinance or regulation from banning rentals or regulating the duration or frequency of rentals, and also possibly invalidate any regulations passed since June of 2011. The bills also specifically define “advertising platform” and require that the operator of a vacation rental must display a license and sales tax registration information when posting on these platforms.

Fortunately, the current text includes an exemption for community associations. This means that while the proposed law would prohibit local governments from passing restrictions on short-term rentals, private residential communities could still restrict rentals, through minimum lease terms or other provisions. The precise language included in the text is as follows:
“The Legislature does not intend for the application of this act to supersede any current or future declaration or declaration of condominium adopted pursuant to chapter 718, Florida Statutes, cooperative documents adopted pursuant to chapter 719, Florida Statutes, or declaration of covenants or declaration adopted pursuant to chapter 720, Florida Statutes.”

Note that the bills specifically address “declarations,” but do not include the more broad term “governing documents” which means it arguably could exclude restrictions in the bylaws or rules and regulations of a community. Note too, that it is possible this carve-out exempting community associations could be removed from the law during the committee amendment procedure. For this reason, it is imperative that our CALL members remain vigilant in monitoring the bills as they progress throughout this legislative session. Thus far, SB 1128 has been debated and approved by the Innovation, Industry and Technology Committee by a vote of 8-2, and the next stop is the Commerce and Tourism Committee.  Meanwhile, HB 1011 was approved by the Workforce Development & Tourism Committee on January 21, 2020 by a vote of 10-5, with the next stop scheduled for Government Operations and Technology Appropriations Subcommittee.

If the language quoted above is removed or revised, then the tools so many communities rely on to stop the proliferation of vacation rentals, i.e., a provision in the governing document that limits or prohibits rentals, would be lost. To this end, the CALL team is preparing letters to the sponsors of the bills addressing these concerns. We always welcome the input of our CALL Members, so please let us know if you have any comments or suggestions and we will include your feedback in our communications with the legislators.

Donna DiMaggio Berger

Donna DiMaggio Berger

Contact: dberger@beckerlawyers.com

Donna DiMaggio Berger is a member of the College of Community Association Lawyers (CCAL), a prestigious national organization that acknowledges community association attorneys who have distinguished themselves through contributions to the evolution or practice of community association law and who have committed themselves to high standards of professional and ethical conduct in the practice of community association law. Ms. Berger is also one of only 129 attorneys statewide who is a Board Certified Specialist in Condominium and Planned Development Law.