HOA requires new buyers have background check

In Florida, single family mobile homes, property owned, the HOA just sent out a letter to all homeowners stating, "All future sales require the buyer to have a background check performed by TENANT CHECK at a cost of $50 per adult." It also states that the HOA will make the determination if the buyer is allowed to buy after results of the check have been returned. No Association meetings were held (or voting) to approve this action. Owners who desire to rent their properties often have background checks done to protect themselves against financial risk, but I have never heard of buyers/sellers having to do this at the Association's Board of Director's wishes. Any discrimination here?

In addition, in the same letter, it states, "Anyone having visitors staying longer than 12 days also have to have a background check done at the same cost." Their reason being. "The homes are single family homes". ???? I question this action.

Failure to accomplish a background check is a "Willful violation" and a fine of $100 is imposed. Continued inaction to have the check performed will constitute additional $100 fines every seven days until a check has been done.

Anything if Florida Statutes 720 regarding this subject?

My park is under Homeowners Association Statute 720, for sure.
Each owner owns their lot.

Philip,

The only thing that the association can use to discriminate against a potential buyer is if they are a registered sex offender .That gives the association leverage about children being within a certain distance to the offender.

Associations all over Florida try denying a buyer their purchasewith these Board made rules, but they cannot. It's against the Federal law to discriminate against others. It would be interesting to know what determines if someone "passes" and what criteria they use. I would say--naughty naughty Board.

Philip,

I believe your BOD needs to run these new rules by their attorney. I really do NOT believe he would advise them to do this. If they want to control rentals they should adopt a rental policy. But even so, they should think twice about requiring a background check as part of the policy. Our PM checked this out with our attorney and we were advised to NOT require a background check in the rental policy in order to preclude any liability should something go wrong. He advised that the only thing we should do is "suggest" to the homeowner that they MAY want to do a background check on a potential renter.

Requiring potential buyers to undergo a background check would qualify as discrimination, IMO. Your board should definitely stay away from this. And requiring a background check on visitors is the most ludicrous thing I've ever heard of. If I lived there I would be wondering what the board members are smoking!!! If this doesn't cause the members to take the board members to task, nothing will.

TIM and Mary

Both of you hit the nail on the head. Those are my feeling, exactly.
I was intending to sell my place in the next few months, but with the economy and housing prices in decline, and adding to the fact that this Board wants to pull
this Background check fiasco, it will be even more difficult to sell a property
at a reasonable price. I also think the Association is placing itself at great
risk. I was stunned when the Board's letter appeared in my mailbox without any
knowledge or warning.

Phil

Robert
I have lived in this community since 1997. I have served on the Board as a Director, as Treasurer and also as V-President. In all I have about 8 years experience with the Board. I haven't been on the board for the past three years. This year a new President was elected and I know this gentleman very well. He had served on the board several years ago. I only reside in Florida 6 months and live in Maine during the summers. I do attend monthly meetings when present. This guy has some wild ideas and is a hot-head. One idea I heard about was that renters can not use the recreational facilities such as basketball, tennis courts, shuffleboard, pools (2) or the clubhouse. But the park has mandatory association dues and all owners/and or renters are entitled to use common area property, I believe the Board finally decided that the association could be in deep trouble if implementing this idea.

I believe this latest plan (background checks) was done secretly amongst the board members. It came as a complete surprise to not only myself but to other owners in the community. We just received the letter in the mail yesterday. No one individual wants to fork out money to get a legal opinion from a real-estate lawyer, but maybe if several homeowners get together we can explore this option. Presently, one homeowner works for Century-21 and she is asking the manager in the local office who she can contact in the county/state and maybe get some answers. Will provide further details on this matter as we do some research.

Phillip I’m not an attorney and this is not legal advice just my opinion but in addition to violating 720.306 in that they did not notice the meeting and give H/O’s a chance to speak on it; they are attempting to write a rule in lieu of a Covenant amendment. Unless the Covenants you and your mortgage holder agreed to be bound by has a section concerning a Boards approval before a sale this is invalid on its face. A lot of CC&R’s, especially in the south do have something about BOD approval before the sale; they were put there in an effort to keep minorities from purchasing in white developments and have been consistently ruled invalid and discriminatory.

Now this is just a WAG (wild a**ed guess) but since they are specifying a particular company it leads me to suspect someone works for them or someone is getting a finders fee. While there is a fine if someone stays over 12 days what is the penalty if someone ignores the rule and sells anyway?????? As you do your research I would start with HUD.gov they may be able to give you an opinion on the matter.

Glen and Robert

You are both on the mark with your comments. I contacted an attorney in Florida who works for Homeowners rights called CCFJ (Cyber Citizens for Justice)I sent her the exact wording of the Boards letter which is below.

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Our Homeowners Association has contracted with TENANT CHECK to provide their services to do background checks
on persons wanting to move in our community.

Homeowners who wish to sell or rent their homes must make sure that the attached form is completed prior to the sale
of ones home or move-in of renters.

There is a non-refundable application fee of $50 per adult to be paid when the application is submitted. Along with the completed application form it is required to submit a copy of each applicants drivers license and proof of social security
number.

If you do not comply with having a tenant check completed through the Board and new tenants move in, you will receive a "Willful Violation" notice with a $100 fine payable within 7 days, plus a minimum thirty 30 day suspension from the
common areas. Additional fines of $100 each will continue every 7 days of continuing violation, until violation is corrected.

Because we are a deed-restricted community, anyone who visits with you for more than 12 days, must be checked through tenant check, and/or approved by the Board. Per our documents - Each lot shall be used for single-family mobile home
residential purposed only.
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Our CCR's and bylaws do not address anything pertaining to this matter. A Board cannot make new rules/regulations without having a public meeting and vote, can they? This issue appears to go against Florida and Federal standards. It appears
that the Board is trying to eliminate lower income families from moving into the community, much like the South used to do in attempting to keep Blacks from moving into white neighborhoods. This letter, although stating that the Board will make
the decision on allowing new tenants after the background check, does not state what standards will be used in determining approval or disapproval. Concerns about Pedophiles can be found by anyone, online in our county.

I believe an Association cannot screen applicants unless there is a provision in the bylaws, articles of incorporation, or declarations of covenants and restrictions allowing for screening. If these documents do not contain this provision, then the association is breaking the law.
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Response from the CCFJ Attorney follows:

You are correct. Demand a copy of the minutes of the public meeting in which this rule change was created. Furthermore, if such rules didn't exist in the original rules the board can't just make it up without owners' approval.
What is the name of your association -- and who is the attorney behind the board?
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I will be providing the information to her that she requested.

Philip,

While I am not an attorney and don't claim to know legaleze, I do not believe the information the CCFJ attorney gave to you is correct. Rules that BODs enact are not taken before the membership for an approval vote. That is a Board function. The membership must be notified 14 days prior to a meeting at which rules are voted upon by the BOD but members don't vote for them. But at the notification meeting, that is when members can get vocal and make the BOD aware that they should not pass these rules, remind them of Federal laws, and basically inform them that they are not acting in the best interest of the membership. As you were privously on this Board, you should also know that this was an illegal meeting because of a lack of notification.

Philip,

IMHO, These are the rights that they are removing from an owner. And yes, they are breaking the law. IF this were a condo, they might squeek by on an alteration of the rules that they illegally passed but you are stand alone mobile homes. You might want to contact an attorney for HUD to get an opinion. They are free.
" Make housing unavailable
* Deny a dwelling
Refuse to rent or sell housing
* Make housing unavailable "

Philip,

The ("ASSOCIATION") from time to time. may be adopted, altered amended or rescinded ("REASONABLE") rules and regs---governing use of streeets &common areas, rec facilities,public utility (AND THE LIKE")

Hummm, I don't see use of lots or units, just like you pointed out. I'd say , still call a HUD lawyer. Stay away from CCFJ. Those guys are all volunteers, just like your BOD.

Philip,

Based on this posting alone, it could be a gray area. I expect that they might be refusing the sale based on criminal activity vs. race,color, etc. They may be violating other legal statutes but might not be violating this one.

I've already said I think the background checks are a stupid idea. I'm posting this response because I don't think it would be relevant (it might be but you just don't know until the standards for approving or denying a sale are published).

Tim

March 10th Update on this issue.

I attended a general meeting on the 9th of March. Myself and a few other Association members asked if the Board had sought the advice of our attorney
prior to deciding to enforce the Tenant Check issue. Found out that the Board, without consulting the attorney, or the association membership, tried to make a rule to enforce the Tenant Check issue.

After advising the Board that they were treading on thin ice, legally speaking, for the possibility of incurring a huge law suit, we pointed out that our documents do not support this action and that the Board cannot do this.

We advised the Board to consult the attorney. Hopefully the attorney is knowledgeable enough to inform them that they cannot do this. So at the moment we are spared the enforcement of the Board's action.

Philip,

Thanks for the update. Please keep us posted.

Tim

RobertR1

Yes, indeed, all meetings are recorded on cassette tape and the minutes are
taken by the secretary. Audio tapes and minutes are available for all members to listen/read upon request as per our documents and Fla law.

Also when asking the president why our visitors were included in their proposal for Tenant Check after 12 days, we were told that Tenant Check had recommended this. Our reply was, "Sure, that's because it would be an added money-maker for them and their goal is to make money". Nobody at the meeting wanted their visitors/relatives to have to shell out $50 (each) for a stupid, unnecessary rule.

Most opinions of members at the meeting were in agreement that maybe incorporating a renter tenant check might be a good idea, but that it was unenforceable as our our documents currently read.

How is the renter issue handled in your documents? by RobertR1

We have a one-liner in our By-Laws which states that all potential
renters must fill out an application/occupant form. This form provides the
secretary (an Association) with the names of people who will be renting. It was not intended to be an approval/disapproval vehicle.

Philip,

If your docs allow it, IMO the board should expand on that one-line rental policy. My board has a rental policy that requires the prop owner to provide copies of the gov docs to the renter and advise them that they are required to abide by them. The name(s) of the renters are required to be given to the BOD, as well as contact info for the property owner. The prop owner is required to complete and sign the rental agreement. If they do not within a certain period of time, they receive a violation notice and may be subject to a fine -- the same as violating any other assn restriction. The BOD does NOT require background checks for renters, on the advice of our attorney, as this could pose a serious liability issue for the assn. Some assn's place restrictions on the length of a rental, i.e. must be at least one month, six months, one year, etc.