The Alleged Roommate and a Condo Board In a Tough Spot

April 2025

Tags: Violations, Rentals

Our experts have seen it repeatedly—an owner in a condo that bans or limits rentals saying they've just got a roommate. In one recent case, the condo's amended bylaws say owners can rent their unit only in cases of hardship. There are no additional rules implemented, such as requiring that owners submit a copy of their rental or roommate agreement. No hardship was sought, and then the owner took in a “roommate,” as other owners have done over the years.

For now, the board of this six-unit condo knows only this: that the owner is mostly gone but returns to the condo every few months for a few days or a week at a time. The owner receives mail there. The owner has belongings there.

A different owner claims this is a rental and that the board approved this rental in violation of the amendment. The board wrote to the complaining owner stating that they believe their only option to enforce the no-rental amendment is litigation and that a judge would likely find there's insufficient evidence to conclude there's anything other than a roommate situation taking place—wasting the condo's limited financial resources.

Is there anything this board can and should be doing to investigate or to respond to the owner who's claiming the board isn't enforcing the amendment? Here, our experts are firmly behind this board, saying it's unlikely a court would find a rental violation. They also suggest this board flesh out some definitions.

California Law Would Call this a Roommate

What this owner with the roommate or renter is doing would fall squarely under the definition of a roommate situation in California.

“First, the owner continues to maintain personal items and does actually come back and sleep in their unit,” states Jasmine F. Hale, CCAL, a principal at Berding & Weil based in Walnut Creek, Calif., who advises condos and HOAs throughout California. “There could be a litany of reasons owners might not be in their unit frequently. Maybe they travel a lot for work. Maybe they're caring for ailing parents. But this is still their home, and that could be why they took on a roommate.

“In California, one of the fundamental tenets of renting is that the owner doesn't have the ability to occupy the unit anymore,” she adds. “The landlord doesn't have the right to come back and stay there.

“So I don't know that this situation would qualify as a rental,” says Hale. “It would also depend on how rental was defined. But in California, as a statutory matter, in this exact scenario where the owner continues to occupy, it doesn't quality as a rental. It's an occupied unit. And California has tenant-friendly laws, sometimes to the consternation of the boards.”

In his tourist-friendly state, Sean A. O'Connor, a shareholder at Clarkson McAlonis & O'Connor P.C. who has represented condos and HOA throughout South Carolina for nearly 20 years, doesn't have many client associations where rentals are banned altogether. Restrictions more often address short-term rentals. That said, O'Connor thinks it's unlikely the board would be able to convince a judge that this is a rental, not a roommate, situation.

“If somebody has brought in someone the owner is describing to the board as a roommate, and the owner still comes and stays there, gets mail there, and does other things that are indicia of living there, at least part of the time, I'd suggest you're going to have a heck of a time proving it's anything other than a roommate situation,” he says.

“Also, I can see this being litigated, and the board is in court arguing about the interpretation of a particular covenant,” says O'Connor. “If that amendment is in any way ambiguous, the court will always interpret it in favor of the homeowner and against the HOA. That's because the law favors the free use of property and disfavors restrictions unless it's very clear about what's allowed and not allowed.

“This board would crash and burn if this were litigated in court,” he predicts. “They'd be spending a lot of money for litigation. And toward what end? I think it's far from sure they're going to win that argument.”

Looking at it from the owner accused of renting their unit is Brad van Rooyen, CPMS, the president of Florida-based Folio Association Management, which oversees more than 325 associations throughout the state. “I put myself in the owners' position, and I'd say, ‘Prove that I'm renting it.'

“How are you going to prove that?” he asks. “You'd have to hire a private investigator to find something to show that person they say is a roommate is a renter. It's going to be very hard to prove also in part because most associations don't have the authority to demand financial records from owners.

“When I read this, I thought it seemed a bit wacky in the sense that, if you make a claim that someone's a renter, you'd better have the proof,” says van Rooyen. “I'd also remind this board that, in some states, the prevailing party in litigation is entitled to attorneys' fees. So if the board loses litigation over this, it could be forced to pay the owner's legal fees.”

How to Make this Clearer

There is more this board could do to have clarity on this issue. “On the facts themselves, to eliminate this from being a future problem, this board needs to clarify more in the documents what's considered a rental and what's a roommate,” suggests Melissa Garcia, a shareholder at Altitude Community Law PC in Lakewood, Colo., who provides advice and counsel to Colorado associations in all areas of community association law. “Here in Colorado, we have Airbnbs and leasing, so is doing an Airbnb agreement a lease? If the homeowner is living there, is renting a room really a lease? Be more specific.”

The board can also notify the complaining owner that the board has investigated. “In California, we're not entitled to disclose to Party A the board's disciplinary action against Party B,” explains Hale. “I do think it's permissible, if a homeowner says that other owner is in violation, to say, ‘Thank you; we'll investigate.' That way, you're not just ghosting them, which can mushroom.

“If the board determines the complained about conduct doesn't qualify as a violation, then you're not commenting on a disciplinary action, you're commenting that you've fulfilled your duty,” she adds. “After they investigate, the board might say, ‘Thank you for your concern. We want to assure you that we've investigated. There's no violation, and the board lacks the legal authority to pursue enforcement against the owner.'

“The other thing is that an owner can always pursue an action against the HOA or another owner when you believe someone is in breach,” says Hale. “And I can tell you that zero percent of the homeowners I've informed of that fact have ever pursued their own legal rights.”

Garcia also suggests consulting with your association lawyer not just for legal advice but to provide support for the board's position. “When an owner challenges the board, boards have to meet a certain standard of care,” she explains. “As long as you rely on an expert telling you this is a bad case to pursue enforcement on, that itself protects you from liability. That way, you've done what you could, and courts will defer to the reasonable decisions of the board. They don't want to second-guess boards that have reasonably relied on experts.

“Finally, this board should also remember that, when they're challenged, boards will sometimes start second-guessing themselves,” says Garcia. “I don't see any reason for this board to do that. If there are more facts that arise, that's one thing. But in terms of protecting the association, not enforcing a provision in your documents is a decision that's just as strong as enforcing one.”

Reposted from HOALeader.com 

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