Criminal Checks on Members

Started by LindaC3 • 12 replies • 2467 views

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LindaC3 (Florida)
Posts: 526

Posted:

Good Day Group---- Hopefully there is someone from Florida on the forum that may be of help with this situation...Is it legal for an HOA Association to perform a criminal background check on persons buying property in a HOA Community ???? They also run credit checks but as of July 2007 in the State of Florida that practice will no longer be allowed...Thanks for the input as always....Linda C

BrianB (California)
Posts: 2,820

Posted:

first, i would say it would depend on how they were running the check. an HOA can run a check on anyone, at any time, using any legal and public means, for any reason. However, they may NOT misrepresent themselves in order to run a check that is only available to a smaller, select group (like lenders for credit checks, or police organizations for criminal checks). They can run a criminal check as a potential EMPLOYER, if they are hiring someone, or as a contract signee, if they are signing a contract, but doing much more than a search of public records (which anyone can do) would likely be not kosher.

besides, what are they going to do if they find a criminal? In general, an HOA cannot forbid the sale of a house, can they?

LindaC3 (Florida)
Posts: 526

Posted:

Brian- they are charging a substantial fee for this check and also $150.00 for the credit check- And the Deed Restrictions contain a clause about the first right of refusal..I believe in my opinion that the statment violates HUD.....amongst other things......LindaC

BrianB (California)
Posts: 2,820

Posted:

i am not sure having first right of refusal gives anyone the right to tell me to jump left, lean right, and twirl twice on my toes. it gives them the right to say yes or no, not place hoops or hurdles.

I would want to read the deed carefully, but i don't believe they can enforce the charging of those fees. they seem like something THEY want in order to decide, but there should be no obligation that I pay for it, as a potential buyer. and as an owner in the HOA, i think it's a waste of my money.

LindaC3 (Florida)
Posts: 526

Posted:

I will have to do some legal checking into this- Our restrictions even contain the verbage that we all shall be of the same like mind and comportment....HOO HAA...Thanks for your reply----- Linda C

RonaldW (South Carolina)
Posts: 901

Posted:

Posted By LindaC3 on 01/04/2007 2:32 PM

.........Is it legal for an HOA Association to perform a criminal background check on persons buying property in a HOA Community ???? .......

Your HOA attorney should be able to answer this. I don't know how an HOA could control who actually buys the property so I don't think this is a good use of HOA funds, nor is it a good way to welcome a new neighbor.

Ron
SC

LindaC3 (Florida)
Posts: 526

Posted:

Ronald...... I love the chuckle about the HOA Attorney--- They are more about what ever the board wants not the Members.....The Assoc. does not pay for the background check the prospective buyer does and without you will not be approved to purchase a lot or a home......Go figure Linda C

BrianB (California)
Posts: 2,820

Posted:

see, i am one of those idiots who actually believe that "right of first refusal" means that you have the right to offer a matching term, and buy out the purchase from another party. that is the legal definition, after all.

So, if the HOA has "right of first refusal", then all they can do is match the offer made by a potential buyer, and buy the property. ROFR only means that they do not have to increase the offer, just match it, and they win. they cannot turn down a buyer, only match his offer and own the property themselves.

LindaC3 (Florida)
Posts: 526

Posted:

Brian B-- Oh no it gets juicy....They say they can get an appraisal and we have to accept that as the offer---I will dig up the exact wording and post later......I guess that would be another thread for discussion.I was trying to find out the legality of having to pay for my own criminal background check and them telling me I can't purchase property from an independent person whom I have a legal contract for purchase and also paying for a credit check so they (assoc) would be assured I would pay my monthly fees....Like a credit check would assure them of that- The ability to file a lien against my property should be all the assurance they would need....It seems like a snoopy HOA BOD with too much time on their hands and invasion of my privacy.....I am not applying for credit from them and if I was just approved by a lender to purchase a $300,000.00 home my credit worthiness is none of their business just like if I got a parking ticket 10 years ago is none of their business......LindaC

RonaldW (South Carolina)
Posts: 901

Posted:

Posted By LindaC3 on 01/04/2007 4:08 PM

Ronald...... I love the chuckle about the HOA Attorney--- They are more about what ever the board wants not the Members.....The Assoc. does not pay for the background check the prospective buyer does and without you will not be approved to purchase a lot or a home......Go figure Linda C

I guess I assumed that you were a board member, not a prospective purchaser.

An attorney is not about what anyone wants, it's about the laws in your state, county, city, etc. And remember, the BOD represents the members, they are not adversaries of the members. They are elected and subject to replacement if the menbership feels they are not performing their duties.

I still don't think an HOA can approve or dissaprove a sale of a property but then, each association is different and each state has different laws.

Considering my missunderstanding of your position, my revised advice would be to consult your attorney. You'll get much better legal advice than you will here,

Ron
SC

LindaC3 (Florida)
Posts: 526

Posted:

Ronald-- I am a Member of our Appeals Commitee and seeking a seat for the BOD in the upcoming elections.These questions have been posed to me from Members here as part of a think tank session we have been having before the elections in the next few weeks.....It would not be prudent on my part at this time to seek our HOA attorneys opinion about this particular issue- That will come when and if I get elected to the Board.There will be a long list of inquires for him/her to answer for all the members here-- We are all lately coming of "age" and "enlightment" with regards to the verbage contained in our restrictions and by laws--- and the lack of verbage in both documents...I do really appreciate your input as always THANKS BUNCHES LindaC

BrianB (California)
Posts: 2,820

Posted:

linda, one thing i have found that helps separate the wheat from the chaff is the missouri statement of "show me"

when someone says "well, we have right of first refusal", you should ask "where? Show me." when they do, then read the document, and find out what it means, etc. 10 times out of 9, people who make such crazed statements have no idea what they are talking about, and are spouting something they read once about something else in another article about snowblowers in montana or something.

One thing i have learned in my profession, if i can't lay hands on the exact rule, SOP, quote, email, or statute, then I stop arguing and start looking harder. Nothing ends an arguement faster than having the text, in hand, to prove your point.

HaroldS (Arizona)
Posts: 906

Posted:

Linda - here is the definition of ROFR from Wikipedia:
Right of first refusal (ROFR) is the right to make an offer AFTER offers from others are considered.
Example: Right of First Refusal (ROFR): This is what "chills the bidding". Say you are looking to sell an asset and someone has a ROFR on it. If a third party now comes along and offers $100 for the asset, you have to reveal that price to the party who has a ROFR, and if he chooses to execute his ROFR, he can pay $101 and walk away with the asset.

Do a google search for Right of first refusal. There are several definitions there but not a one says the holder of ROFR can get an appraisal and use that as their buying offer. There has to be an OFFER before they can exercise their ROFR. Harold

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