Florida's 2021 codification of grandfathering for HOA rental restrictions resolved—in part—the long-running doctrinal tension between an association's authority to amend its governing documents and individual owners' reliance on the rules in place when they purchased. Alabama offers no analogous statute, leaving owners and associations to navigate restrictive covenant common law. Practitioners advising either side must understand both regimes and the vesting arguments that survive (and fail) in each.
I. The Florida Architecture: From Woodside to § 720.306(1)(h)
The Pre-2004 Default: Amendments Bind All Owners
For Florida condominiums, the doctrinal watershed is Woodside Village Condominium Ass'n, Inc. v. Jahren, 806 So. 2d 452 (Fla. 2002). The Florida Supreme Court held that when owners purchase a unit, they take subject to the condominium declaration's amendment procedures. An owner who buys with the right to lease freely implicitly accepts that the declaration can be amended by the supermajority vote specified therein. The Court rejected the argument that pre-purchase reliance created a vested property right immune from subsequent amendment, holding instead that notice of the amendment mechanism defeats the reliance claim.
Woodside's logic was equally available in the HOA context, though it arose in the condominium setting. Post-Woodside, the practical effect was that a validly adopted rental restriction amendment bound existing owners—full stop—unless the declaration itself carved out grandfathering.
The Legislative Response: Fla. Stat. § 718.110(13) and § 720.306(1)(h)
The Florida Legislature acted in 2004 to protect existing condominium owners, codifying a grandfathering rule at Fla. Stat. § 718.110(13). That provision limits the reach of amendments that prohibit rentals, alter rental duration, or restrict the frequency of rentals to owners who consent or who acquire title after the amendment's effective date.
For homeowners' associations, the Legislature did not move until 2021, when Senate Bill 630 added Fla. Stat. § 720.306(1)(h) (effective July 1, 2021). The structure is similar but not identical:
Subsection (1)(h)(1) establishes the default grandfathering rule: any governing document or amendment enacted after July 1, 2021, that "prohibits or regulates rental agreements" applies only to (a) a parcel owner who acquires title after the effective date, or (b) a parcel owner who consents to the amendment.
Subsection (1)(h)(2) carves out short-term and high-frequency restrictions from that protection. An association may amend its governing documents to prohibit or regulate rental agreements for a term of less than six months and may prohibit rentals more than three times in a calendar year—and such amendments apply to all parcel owners regardless of consent or acquisition date.
Subsection (1)(h)(3) exempts associations with fifteen or fewer parcels from subsection (h)(1), preserving the pre-2021 rule (under § 720.303(1)) that the governing documents control.
The legislative policy is legible: the Legislature disfavors short-term vacation rentals and high-frequency turnover (less than six months / more than three annual rentals) while protecting existing investors who purchased to generate long-term rental income.
II. Interpreting "Prohibits or Regulates": The Unanswered Question
The breadth of subsection (1)(h)(1)'s triggering language—"prohibits or regulates"—is not yet fully resolved by the courts. Associations have asked whether an amendment merely adding an approval process (requiring board consent of tenants, background checks, or registration fees) "regulates" rental agreements within the statute's meaning, or whether the statute is limited to amendments that directly restrict duration, frequency, or outright prohibition.
The conservative reading applies the grandfathering rule to any amendment that alters an owner's previously unrestricted ability to lease on the owner's own terms. A more permissive reading would limit the statute to amendments that directly prohibit or quantitatively restrict rentals. No Florida appellate court has definitively resolved this, but practitioner consensus leans toward the broader reading, particularly given the Legislature's plain-language choice of "regulates" rather than "prohibits." Until courts clarify, associations and their counsel should treat any amendment that adds conditions on leasing—even procedural conditions—as potentially subject to the grandfathering obligation for owners who do not consent.
III. Mechanics of the Grandfathering Provision
Who Bears the Burden of Proof?
For enforcement litigation, the practical question is which party must demonstrate that a given owner falls within the protected or unprotected class. An association seeking to enforce a rental restriction against an objecting owner should plead and prove: (1) that the amendment was enacted after July 1, 2021; (2) the date of the owner's acquisition of title; and (3) whether the owner consented in writing or through a representative at the vote.
Owners resisting enforcement may raise the vesting defense as an affirmative defense or by declaratory judgment action under Fla. Stat. § 86.011. Failure to timely raise the defense may waive it.
Change-of-Ownership Rules
The 2021 legislation specified how "change of ownership" is determined for purposes of deciding whether an owner acquired title before or after the amendment. The statute ties this determination to the date of recording of the deed conveying the parcel. Practitioners should be aware that conveyances among related parties (e.g., transfers to a family LLC already controlled by the owner) may or may not qualify as a "change of ownership" that re-starts the clock—the statute's silence on this point invites litigation.
Consent Through Representatives
The statute permits consent "individually or through a representative." This language accommodates voting by proxy, but it creates a question whether an owner who gives a general proxy—without specific authorization to consent to rental restriction amendments—has effectively consented under the statute. Careful associations should include explicit authorization language in any proxy form used to vote on rental restriction amendments.
IV. Alabama: Common-Law Restrictive Covenant Principles
Alabama has no statute analogous to Florida's § 720.306(1)(h). The Alabama Homeowners' Association Act, Ala. Code § 35-20-1 et seq., governs HOAs formed on or after January 1, 2016, and pre-2016 associations that elect coverage. It does not address rental restriction amendments or grandfathering. Alabama associations and owners must therefore rely on common-law restrictive covenant doctrine.
The Default Rule: Amendments Bind All Owners (With Limits)
Alabama courts construe restrictive covenants strictly. As the Alabama Court of Civil Appeals has stated, "all doubts must be resolved against the restriction and in favor of free and unrestricted use of property" where the covenant language is ambiguous. See Maxwell v. Boyd, 66 So. 3d 257, 261 (Ala. Civ. App. 2010) (quoting earlier authority). Where the covenant language is unambiguous, however, courts enforce it according to its plain meaning.
A declaration that expressly authorizes amendment by a specified vote will generally permit the association to amend rental provisions, and existing owners who purchased with notice of the amendment mechanism take subject to that authority—tracking Woodside's logic in the condominium context.
The Vesting Defense Under Alabama Law
Alabama does recognize that property owners can acquire vested rights in the absence of restrictions at the time of purchase, but the doctrine operates differently from the Florida grandfathering statute. Under Alabama's relative-hardship test (an equitable doctrine), a court may decline to enforce a restrictive covenant if enforcement "would harm one landowner without substantially benefitting another." See Lange v. Scofield, 567 So. 2d 1299, 1302 (Ala. 1990). The doctrine is disfavored where the burdened owner had knowledge of the restriction before making any investment commitment.
More directly, Alabama courts look to the original declaration's scope: if rental restrictions were not part of the original covenant scheme, courts sometimes treat a materially new restriction as exceeding the amendment power. The argument is that the amendment mechanism implicitly authorizes changes within the scope of the original covenant scheme, not the creation of wholly new categories of restriction. This argument has not been conclusively resolved in Alabama appellate decisions specifically involving rental restriction amendments, but analogous covenant amendment cases support its viability.
Change-of-Conditions Defense
Alabama also recognizes the change-of-conditions doctrine as a defense to covenant enforcement: where the neighborhood has changed so substantially from its original character that enforcement would have no appreciable benefit, a court may decline to enforce the restriction. This defense is rarely available in planned communities that have maintained their residential character, but it can be relevant where an HOA seeks to impose a new rental restriction on an established mixed-use or investor-heavy community.
V. Practice Notes
Florida — Association Side:
- Draft rental restriction amendments with explicit grandfathering language tracking § 720.306(1)(h) to reduce disputes.
- Maintain precise records of each parcel owner's acquisition date (from the county property appraiser's records) and the date of the amendment's recording in the county's official records.
- For amendments that could qualify under the short-term/frequency carve-out of subsection (1)(h)(2), document the legislative rationale in the minutes to support enforcement against all owners.
- Confirm that proxy forms for the amendment vote specifically authorize consent to rental restriction amendments.
Florida — Owner Side:
- Record the acquisition date and compare it to the amendment recording date. If the owner acquired before the amendment and did not consent, the § 720.306(1)(h)(1) defense is facially available.
- Challenge any "consent through representative" argument where the proxy was a general proxy not specifically authorizing consent to rental amendments.
- For pre-July 1, 2021 amendments, the analysis returns to Woodside: the amendment is likely enforceable unless the declaration itself requires grandfathering or the amendment procedure was defective.
Alabama — Both Sides:
- There is no statutory safe harbor. The analysis is entirely covenant-document driven. Begin with the original declaration's amendment procedure and scope.
- Owners asserting vesting should build a record of reliance: evidence that they purchased specifically because of rental income potential, documented investment decisions, and the absence of rental restrictions in the original governing documents.
- Associations should focus on whether the declaration's amendment power is broad enough to encompass new categories of restrictions and whether the required vote was properly obtained and documented.
VI. Open Questions
The principal unanswered question in Florida is whether an amendment that merely regulates (as opposed to restricts duration or frequency) triggers the § 720.306(1)(h) grandfathering requirement. Courts will also need to address collateral issues: What happens when a grandfathered owner later transfers to a family trust or LLC? Does the "change of ownership" analysis apply to those transfers?
In Alabama, the absence of any legislative framework leaves the field open for vesting arguments that Florida courts largely foreclosed after Woodside. As investor ownership in Alabama HOA communities becomes more common, litigation in this space is a near certainty.
Closing
Rental restriction amendment disputes occupy an uncomfortable intersection of contract, property, and statutory law. Florida's § 720.306(1)(h) framework provides clarity for post-July 2021 amendments while leaving the short-term/frequency carve-out as a drafting tool for associations. Alabama offers no such framework. In both jurisdictions, the practitioner who understands the transactional history—what restrictions existed at purchase, how the amendment was adopted, and whether any consent was properly documented—will control the litigation.
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Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.