HOA Governing Documents Must Properly Provide for Restrictions on the Leasing of Separate Interests

The governing documents of many common interest developments contain provisions that restrict the owners' rights to lease their units. These restrictions range from absolutely prohibiting leasing, to partially restricting leasing, to merely imposing restrictions on tenants' rights. The validity of the restrictions that are imposed by a homeowners association on leasing are frequently the subject of conflicts between owners who lease their separate interest and their homeowners association. A consideration of the validity of lease restrictions starts with an evaluation of the provisions contained in the association’s declaration relative to owners’ rights to lease. It is crucial to know if the covenants give the board general authority sufficiently broad to allow the association to control leasing or tenants in some fashion. If the declaration authorizes the board to make rules regarding leasing (or, at least, does not prohibit it), counsel should next determine if a proposed restriction is both reasonable and to be reasonably applied.