It is finally time for legal advice from a local Florida attorney. Late last week, I had the opportunity to have a friend’s wife quickly review the information and provide her interpretation. It is now time to get a local attorney who is very familiar with the Florida law to provide their interpretation and guidance.
Before hearing what the attorney had to say, if you haven’t had a chance to get caught up yet on everything going on, check the links below for the first 6 parts to the series!
- Part I: Calling HOA To File Lawsuit!?!?! Short Term Rental Update – Ol’ Faithful
- Part II: S**t Is Getting Real – I Posted In My HOA Homeowner FB Group And Got People Fired Up
- Part III: Security Turned The Guests Away This Morning – I Watched The Whole Thing From Inside The Gates
- Part IV: Lawyer Time – I Spoke With A Lawyer Over The Weekend, And Here Is What They Said
- Part V: Lawyered The S**t Out Of The Final Email To The HOA & Board
- Part VI: The HOA President Responded With The Board Decision – Prime The Popcorn
Getting On The Phone With The Attorney
I had never spoken to an attorney before to talk through potential guidance on an Executive Order. Prior to speaking with the attorney, I had put together some information for my agent to pass along. I essentially put together a short summary of
- What had happened to this point?
- All communication that had been sent from the HOA/Board to homeowners
- And a copy of Executive Order 87 that walks through the restrictions placed on short term rental owners
The attorney asked me for the case I was trying to argue for which is where I referenced Section A (i) that I had referenced previously in the Executive Order. For reference, below is a snip of the Executive Order and section I was referencing.
How I Interpreted Section A(i)
I recently polled my followers on Instagram to see what their thoughts were for how they would interpret the Executive Order. This was more for fun than anything else. I am by no means a lawyer and I know that probably 99.9% of people who have been reading this are not lawyers, but I thought I would go ahead and poll anyways.
Here were the results from the poll. 90% of people agreed that 30+ day rentals are allowed based off the Executive Order and 10% disagreed. This at least had me not feeling crazy about how I interpreted the Executive Order.
Here is how I interpreted the Executive Order. I interpreted Section A (i) as you are allowed to rent out your place for over 30+ days, but short term rentals are banned for the time being. This would mean any new bookings I received for 30+ days would be allowed to stay in the resort. Again, this was my interpretation of the Executive Order.
Time For The Lawyers Interpretation
Before explaining the Lawyers Interpretation of the law, I would like to say one thing. The lawyer read and re-read the Executive Order. Prior to going into her interpretation of the law she told me this. She said this was one of the worst written Executive Orders that she had ever seen the governor write and sign into law. More than likely, that was due to how quick they were trying to act to get something signed and put into law.
Here is why she thought it was horrible. First, she said the Executive Order looks to contradict itself in a few different areas. There is a lot of technical verbiage in the Executive Order, but there is a lot you must understand about terms like “transient lodging establishment” or “non-transient lodging establishment.” She had to look up the definition of each of them to which she determined that my place would be considered a transient public lodging establishment.
The biggest point of confusion she said is based off how the entire section reads. She stated there is an AND clause to begin point A which then constitutes the OR clauses to act as an AND clause in a sense.
I was so confused, I had to ask her to break it down for me in laymen terms. She talked me through the fact that the AND clause prior to the OR clauses makes it such that all the OR clauses have to be true in order for the exception to be okay based off the Executive Order.
Goodness gracious, even trying to explain it as I type this out right now I am confusing myself as to how to interpret it properly. I believe the correct interpretation is no new guests are allowed to check in because my place is a transient public lodging establishment, it has been rented out prior this year for less than 30 days, it is advertised to the public on Airbnb, and it is regulated by the Department of Business and Professional Regulation as a vacation rental pursuant to section 509.241. I believe since all of those had been true then I could not have anyone check in for the duration of the executive order.
Well S**T!! That Wasn’t The Answer I Expected
She again stated it was one of the worst Executive Orders she had seen written in a long time. She said it is extremely confusing and stated there is a lot more research they would have to do to confirm there are no holes in her initial interpretation, but it would cost $385 per hour to research further. The conversation ended up lasting 20 minutes and at the end of the conversation I asked for her advice to understand whether it was worth them doing the research.
The lawyer told me she would be more than happy to do further research to confirm her initial thoughts, but said she felt 80% confident my case wouldn’t hold up in court. Although hard to say, she said she agreed with the interpretation the HOA attorney had on the law.
To confuse things even more about how the Executive Order reads, I asked her to look at Section B of the Executive Order. I hadn’t read down to Section B of the Executive Order yet. Mainly because I thought Section A gave me a valid case for having someone rent.
Here is what Section B states in the Executive Order:
The community this rental is in considers themselves a resort. So if that is the case, then all resorts are excluded from the executive order. And if resorts are excluded from the Executive Order, would this apply to our resort at all?
In my communication to the HOA and Board, I have only stated reference to Section A(i).
I asked for the lawyer to give me her interpretation of Section B and that is when she said she would be more than happy to do further research, but it would need to be on the clock to do a full interpretation of the case. At that point, I asked her what the best path forward was.
She quickly scrolled down to the bottom of the Executive Order to see when it expired. The Executive Order is set to expire later this week. With that in mind, she told me to wait it out to see if the Executive Order is extended on the expiration date. If the Executive Order is extended on that date, then email her and we could talk through more details on what a legal pivot would be for investors in the community based off the Bylaws of the HOA, Executive Order, and any other relevant information.
Overall Outcome Of Speaking With The Lawyer
Okay, so that didn’t go as I thought it would go. I thought I could read, but I clearly can’t interpret law based off my interpretation of this Executive Order. There has to be a way to pivot this in ways that wouldn’t consider this rental as a short term rental, I just need to figure out how to pivot properly based off the law. There is much more research I need to do and some clarity I need to get with reviewing the Bylaws of the HOA association on long term rentals.
This isn’t where things stop though. The story continues getting even juicier after the response back I sent to the HOA and Board this morning based off their response email yesterday’s article.
Just wait till you see this craziness. Got me fired up! More to come in the next couple of days.
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Don’t worry, this is not where this story ends. I may have lost this battle, but we have not lost the war!
I have much more fun that has happened as of today. More posts coming over the next four days!
To check out the next part of this series, click the link below!
Part VIII: Ready To Pull My Hair Out On This HOA Issue! – But Time For A Political Response