Guests, Tenants and Occupants: What a Florida Condominium Board May Restrict

Jason Hamilton Mikes, JD, MBA
Founder & Managing Shareholder

• Published September 25, 2026
• Reviewed by Jason Hamilton Mikes, JD, MBA, September 26, 2026
• Florida Statutes as of July 1, 2026
• Applies to: Condominiums

Chapter 718 never defines the word guest. Your declaration does, or it does not, and that gap is where most occupancy disputes begin. The workable rule is this: a guest is someone staying with an owner or a tenant who is in residence, for a short and defined period. Anyone living in the unit while the owner is somewhere else is an occupant, and occupancy is what your documents regulate. Enforcement runs against the owner, not against the person standing in the doorway.

Guest, tenant and occupant are three different things

The Condominium Act uses the words tenant, occupant, licensee and invitee, and attaches consequences to each, but it does not define guest anywhere in the chapter. That is not an oversight. The Legislature left occupancy restrictions to the recorded documents, and the documents are where a board has to look first. The categories separate along two lines: whether the person has a right of possession, and whether the owner is in residence.

• Tenant. Occupies under a lease or rental agreement, for consideration, with a right of possession the owner has given up for the term.
• Occupant. Anyone residing in the unit, paying or not. A parent who moves in for the season, an adult child who takes the unit for the summer and a friend who stays while the owner is up north are all occupants.
• Guest. A social visitor hosted by an owner or tenant who is in residence, for a short and defined stay.

Consideration is not the dividing line most boards think it is. A person can pay nothing and still be an occupant rather than a guest, because what makes an arrangement an occupancy is that someone is living in the unit in the owner's absence.

An unlimited guest stay is an unapproved occupancy

The pattern is familiar. An owner reports that a nephew is visiting; four months later the nephew is still there, the owner has not been on the property since March, and the answer is that the nephew is a guest who pays no rent, so the leasing provision does not apply.

Read the declaration before accepting that. Many Southwest Florida declarations restrict occupancy in a provision separate from leasing, using language such as "the unit shall be occupied only by the owner, the owner's immediate family, and their guests." Where that language exists, an arrangement structured to avoid the word lease still runs into the occupancy provision.

Where the declaration regulates only leasing, the analysis turns on the substance of the arrangement rather than what the parties call it. That is a call to counsel, not a decision at the table.

The durable fix is prospective. Define the categories in the documents, tie them to objective facts such as the owner or tenant being in residence and a stated number of consecutive nights, and require registration above the threshold. A definition the board applies the same way every time beats a rule with a stern tone.

What the declaration can restrict, and what it cannot

Florida courts treat restrictions in a recorded declaration differently from rules adopted by a board. A use restriction in the declaration carries a strong presumption of validity and is generally enforced unless it is wholly arbitrary in its application, violates public policy, or abrogates a fundamental constitutional right. A board-adopted rule is measured for reasonableness, and the board carries the burden. Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637 (Fla. 4th DCA 1981) draws that line, and the Florida Supreme Court applied the declaration side of it in Woodside Village Condominium Ass'n v. Jahren, 806 So. 2d 452 (Fla. 2002).

The practical consequence is about where the restriction lives. Rules governing use of the common elements sit comfortably within board authority: pool hours, guest registration at the gate, the number of amenity fobs issued to a unit. Rules controlling who may live inside a unit are a different matter. Our guide on adopting and amending rules works through which is which.

There is also a statutory limit on amending here. Section 718.110(13) provides that an amendment prohibiting owners from renting their units, altering the duration of the rental term, or limiting the number of times owners may rent during a specified period applies only to owners who consent and to owners who take title after its effective date. Whether the same grandfathering reaches an amendment aimed at non-rental occupancy is not answered by the statute. Our guide on condominium leasing restrictions covers the rental side.

Section 718.106(4): during a lease, the tenant holds the owner's use rights

This is the provision boards most often get backwards. Section 718.106(4) says that when a unit is leased, the tenant has all use rights in the association property and those common elements otherwise readily available for use generally by unit owners, and the unit owner does not have those rights except as a guest, unless the rights are waived in writing by the tenant.

Three things follow. During the lease term the pool, the fitness room and the social room belong to the tenant. The owner who shows up in February is, as a matter of statute, a guest of their own tenant unless the tenant has signed a written waiver. And the person entitled to bring guests to the amenities is the tenant.

The same subsection lets the association adopt rules preventing dual usage of the association property and common elements by both owner and tenant. It also preserves the owner's rights of access to the unit as a landlord under Chapter 83, so the owner's ability to inspect the leased unit is unaffected.

Screening and approval where the documents require it

Chapter 718 does not give an association power to approve tenants or occupants. That power, where it exists, comes from the declaration, and its scope is whatever the declaration says. Read the provision closely: many declarations grant a right of approval but state no grounds for denial, and a denial with no stated basis is difficult to defend.

What the statute controls is the money. Section 718.112(2)(k) provides that an association may not charge a fee in connection with the sale, mortgage, lease, sublease or other transfer of a unit unless the association is required to approve the transfer and a fee is provided for in the declaration, articles or bylaws. The fee may be preset but may not exceed $150 per applicant. A spouse, a parent and dependent children count as one applicant. No charge may be made for a renewal lease with the same lessee. The cap is adjusted periodically for inflation, so confirm the current figure.

Run the screening the same way every time: written criteria adopted in advance, applied to every applicant, with the file kept and the reason for any denial recorded. Consistency is the entire defense. A board that approved eight applicants without a credit check and then required one from the ninth has handed the ninth the beginnings of a discrimination claim. Where the documents do not grant approval authority, the association may still require registration, but registration is not approval.

Fair housing: you may not make this about children

The Florida Fair Housing Act makes it unlawful to refuse to rent, to make a dwelling unavailable, or to discriminate in the terms, conditions or privileges of rental, or in the provision of services or facilities, because of race, color, national origin, sex, disability, familial status or religion. Section 760.23(1) and (2). Familial status is defined at section 760.22(6): a person under 18 domiciled with a parent or other person having legal custody, or with a designee holding that person's written permission.

Measured against a guest policy, familial status is where associations get into trouble. The rules that draw complaints look like this: children may use the pool only between 10 a.m. and noon; guests under 18 may stay 14 days while adult guests may stay 30; children are barred from the fitness room. Each treats households with minors worse than households without them, and good intentions about noise are not a defense.

You can still regulate conduct. A rule that any person who cannot swim must be accompanied in the pool area, or that no person may use the fitness equipment unsupervised, regulates the risk rather than the child. Our guide on enforcement and fair housing covers drafting this category of rule, and the same statute governs assistance animal requests through its disability provisions.

Occupancy limits are permissible but must be neutral. Tie the number to the unit rather than to the ages of the people in it, keep it consistent across identical floor plans, and be able to point to the source of the number. Federal guidance has long treated two persons per bedroom as a general starting point rather than a safe harbor, and a tighter limit invites scrutiny.

Age restricted communities are a separate track. The housing for older persons exemption at section 760.29(4) requires that at least 80 percent of the occupied units be occupied by at least one person 55 or older, that the community publish and adhere to policies and procedures demonstrating the required intent, and that it comply with HUD's age verification rules at 24 C.F.R. part 100. An association enforcing an age restriction without the survey, the policies and the verification records is not exempt.

Registration, amenity access and the rules that work

Most of what a board needs here is administrative, and most of it sits within the board's authority over the common elements.

1. Require registration of any occupant or guest staying beyond a stated number of consecutive nights, with name, dates, unit and vehicle. Register the person; do not approve them unless the declaration grants approval authority.
2. Tie fobs, transponders, pool keys and parking decals to the registration, issue a fixed number per unit, and deactivate on the stated end date.
3. Require the host to be on the property for a guest's use of the amenities, if the documents support it, and apply that to owners and tenants alike.
4. Put the guest parking rules in writing, including what happens to a vehicle that has sat in a guest space for six weeks.
5. Give the manager one form and one log.

Be cautious about charging for any of this: a guest fee or key charge with no authority in the documents is hard to collect and harder to defend. Note also that section 718.303(4) allows an association to suspend the right of a unit owner, or a unit's occupant, licensee or invitee, to use common elements and facilities when the owner is more than 90 days delinquent in a monetary obligation. That reaches a tenant who has paid rent faithfully, so expect the call.

Enforce against the owner, not the guest

Section 718.303(1) provides that each unit owner, tenant and other invitee, and the association, is governed by and must comply with the chapter, the declaration, the documents creating the association and the bylaws, and that actions for damages or injunctive relief may be brought, with reasonable attorney fees to the prevailing party. So the association can proceed directly against a tenant or invitee. It usually should not. The owner holds title and the assessment obligation and is the party a court can order to end the occupancy.

Send written notice to the owner at the address of record identifying the provision violated, the facts, and what must change. If nothing changes, move to fines or suspension of common element use rights under section 718.303(3), which requires at least 14 days' written notice and a hearing before a committee of at least three members appointed by the board who are not officers, directors or employees, or the spouse, parent, child, brother or sister of one. A condominium fine may not exceed $100 per violation or $1,000 in the aggregate, may be levied for each day of a continuing violation on a single notice and hearing, and may not become a lien against the unit. Our guide on fines, hearings and suspensions sets out the procedure.

Where the occupancy continues, the remedy that works is injunctive relief under section 718.303(1). Before filing, check section 718.1255, which requires mandatory binding arbitration or presuit mediation for certain categories of dispute, including disputes over the use of units and the common elements. Filing in the wrong forum costs months.

Throughout, apply the rule to everyone. Selective enforcement is the most common defense raised against an association here and the easiest to establish, because the evidence sits in the association's own records.

Contact Hamilton Mikes

Hamilton Mikes drafts and reviews occupancy, guest and screening provisions for condominium associations across Lee, Collier and Charlotte Counties, and handles the enforcement files that follow when an owner will not cooperate. Call 239-594-7227 or visit our Sales, Leases and Occupancy page.