REFUSING APPLICANT.

Started by FredW5 • 9 replies • 1874 views

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FredW5 (Florida)
Posts: 177

Posted:

Hello, everyone.

We seem to be between a rock and a hard place. My board has received an application for lease approval. From our background screening,it was found that his person has a long "Rap Sheet" including a recent offense (July 2015)
for domestic violence, and battery,for which he was sentenced to a suspended jail sentence, and had to do violence counseling for 6 months, and was out on bail.

Furthermore, (Besides his low credit record) his other past offenses for which he was found guilty includes Felonies for forgery, assault,criminal mischief,property damage, and obstruction of justice, ranging from 2009 to 2011.

The entire board is against this approval.

Our HOA attorney in Florida says that according to Fl. law, there is nothing we can do unless an applicant has a record as a sex predator, or child molester.. That in order to refuse, and change our by-laws to include refusal for criminal offenses we need 100% approval by all residents. (The homeowner who wants to rent to this fellow would not approve, and we would not have 100% cooperation.)

As president of the board, I inquired from my own personal attorney ,who mentioned that if we approve, and something occurs in our community caused by this fellow, that we as HOA are responsible. On the other hand, if we don't approve, we are open to a lawsuit by the fellow, as well as the renter.

Any personal thoughts? We have never ran into such a problem before.
F.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Why do need approval? Most HOAs are third party to lease agreements or even sales. It is up to the landlord to approve or deny. What gives your HOA the right?

Former HOA President

FredW5 (Florida)
Posts: 177

Posted:

Quote:

Posted By MelissaP1 on 11/13/2015 8:39 AM
Why do need approval? Most HOAs are third party to lease agreements or even sales. It is up to the landlord to approve or deny. What gives your HOA the right?

Perhaps this will answer your query:
A condo or HOA has the right to approve or disapprove a prospective purchaser or tenant if the association’s governing documents contain a provision granting the association such power.
Our governing documents has such a provision.

"http://sandglawfirm.com/article_detail.php?detail_id=56"

TimB4 (Tennessee)
Posts: 21,061

Posted:

Quote:

Posted By FredW5 on 11/13/2015 8:18 AM

As president of the board, I inquired from my own personal attorney ,who mentioned that if we approve, and something occurs in our community caused by this fellow, that we as HOA are responsible.

Which is an excellent reason to not have the Association in the business of approving the actual renter.

Do you also approve buyers? If not, then how do you know that an undesirable isn't living within the community right now? If not, then you should not be in the business of approving renters either.

Quote:

Posted By FredW5 on 11/13/2015 8:18 AM

On the other hand, if we don't approve, we are open to a lawsuit by the fellow, as well as the renter.

Time for risk management.

How likely is it that the individual will actually bring legal action (which can be expensive)?

How likely is it that an incident will occur that affects others and they bring legal action?

My advice, get out of the approval process.
However, until you get your governing documents changed to get out of this approval business, you must now choose the least of two evils (so to speak).

TimB4 (Tennessee)
Posts: 21,061

Posted:

Quote:

Posted By FredW5 on 11/13/2015 9:12 AM

A condo or HOA has the right to approve or disapprove a prospective purchaser or tenant if the association’s governing documents contain a provision granting the association such power.
Our governing documents has such a provision.

Having the right and exercising the right are two different things.

ValK2 (Tennessee)
Posts: 65

Posted:

If the applicant is neither a sex offender nor a child abuser...or whatever the exceptions were, has not the Board done their due diligence?

Should there be an event, the Board's defense is that they followed the law, did their due diligence, and found no legally defensible reason not to allow the individual.

Distasteful? Yup. But which is worse, the law suit you will definitely have if you don't approve the applicant, or the law suit you MIGHT have if the individual commits a crime against one of your residents and they argue that he should never have been approved to begin with?

It's a devil you do, and devil you don't situation. In this case, you don't really have any choice.

BTW, nice homeowner you have who wants to rent...and rent to a criminal, no less. But maybe he has the same issue....no legal reason to reject the applicant--except a low credit score should knock out the applicant.....

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By FredW5 on 11/13/2015 8:18 AM

Our HOA attorney in Florida says that according to Fl. law, there is nothing we can do unless an applicant has a record as a sex predator, or child molester.

What's the point of an approval process if you can't/won't disapprove people with criminal histories? I'm with Tim in that we don't attempt to approve renters or buyers, and in fact don't get involved in rentals at all.

Quote:

Anybody can sue for just about anything. Whether you are responsible for any bad occurrence caused by this renter would be up to the judge or jury to decide, and that's why you have insurance in any case.

Escaped former treasurer and director of a self managed association.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Fred,

First, tell the applicant no. He is not likely to sue. The unit owner may make a fuss but the reality is that he has chosen not live in your community; his only interest is in preying upon it. The unit owner is unlikely to be able to go for months and months without the income from the rental. Hard to imagine that this is the best tenant he could find to foist off on your community.

Second, at the next board meeting move that your association find another attorney. If your present one wants to keep you as a client then suggest that he allow the applicant to move in with the attorney's family.

Court decisions from both CA and AZ have held that an association has a duty to ensure the safety of its residents and visitors. I see no way the association could uphold its duty by allowing a known bad apple to take up residence. Your personal attorney has given you far better advice than that hack who now represents the association.

FredW5 (Florida)
Posts: 177

Posted:

Quote:

Posted By LarryB13 on 11/13/2015 11:41 AM
Fred,

First, tell the applicant no. He is not likely to sue. The unit owner may make a fuss but the reality is that he has chosen not live in your community; his only interest is in preying upon it. The unit owner is unlikely to be able to go for months and months without the income from the rental. Hard to imagine that this is the best tenant he could find to foist off on your community.

Second, at the next board meeting move that your association find another attorney. If your present one wants to keep you as a client then suggest that he allow the applicant to move in with the attorney's family.

Court decisions from both CA and AZ have held that an association has a duty to ensure the safety of its residents and visitors. I see no way the association could uphold its duty by allowing a known bad apple to take up residence. Your personal attorney has given you far better advice than that hack who now represents the association.

Thanks, Larry!

I really appreciate your input.
Fred.

FredW5 (Florida)
Posts: 177

Posted:

Quote:

Thanks, Larry!

I really appreciate your input.
Fred.

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