With the enormous growth in recent years in Southwest Florida, most, but not all those folks moving down here, are good upstanding citizens. Once a bad apple moves into a condominium or neighborhood, it can be quite difficult and almost impossible to get rid of him or her. Therefore it is instructive to know how to keep the bad guys out in the first place.
The first thing some will say is, wait a second, you are discriminating against a certain type of people. That is correct, a condominium or homeowner’s association can legally discriminate against bad people and such right has developed over the years in reported Florida cases reviewing this issue. Of course, it is illegal in the housing arena to discriminate based on race, religion, sex or age. However, it is totally legal to discriminate based on bad people.
In order for a condominium or homeowner’s association to disapprove a bad prospective purchaser or prospective tenant, it must first have the right to screen such people for approval in its governing documents. The screening procedures need to be either clearly already set out in the governing documents, or the membership needs to amend the documents to contain a clear transfer approval process of prospective owners and tenants.
The transfer processing procedures usually require the prospective tenant or owner to fill out a detailed application and provide same to the association 20 to 30 days prior to the date of the proposed unit transfer. If contained in the declaration of condominium or declaration of covenants, the association can charge a processing transfer fee up to $100 to offset the cost of the processing of the application. The application usually requires the dates of birth and Social Security numbers of the applicants so that, if necessary, background checks can be performed. The application also usually requires names, addresses and phone numbers of references so that they can be checked. An interview with the applicant(s) is usually also required.
For most applications, the references can be checked and no red flags are raised to go further and perform a background check. However, many times when a person with a chequered history is applying, he usually will resist filling out the application, fill it out incompletely or provide false information. These are the cases when a more thorough background investigation by an outside professional is warranted.
Some examples of things that would be consider grounds under the law to deny an application include: the applicant has been convicted of a felony involving violence to persons or property, a felony involving sale or possession of a controlled substance, or a felony demonstrating dishonesty or moral turpitude. Other examples include the person having a record of financial irresponsibility, including without limitation prior bankruptcies, foreclosures or bad debts.
When a background check is performed, the entire record of the individual(s) needs to be reviewed. It could be all bad acts were many years ago and the individual has reformed. Some of the acts may have valid explanations that could be explored in the interview process. Therefore, a bad actor that turned good could still be approved.
Disapproval of an applicant is a rare event and should only be decided with caution because the bad person could sue the board for such disapproval. We suggest that the association should only disapprove an applicant after it has consulted closely with its legal counsel and counsel has provided the association with a written legal opinion that counsel believes the association has sufficient grounds for disapproval.
Although disapproval is rare, the ability to do so is a great tool to keep the bad guys out, and those living in communities that have had to disapprove a bad guy are sleeping much better knowing they prevented someone from moving in with a high probability of causing harm to them and their families.
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Rob Samouce, a principal attorney in the Naples law firm of Samouce, Murrell, & Gal, P.A. concentrates his practice in the areas of community associations including condominium, cooperative and homeowners associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.