Probationary Membership?

Started by JimB37 • 15 replies • 637 views

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JimB37 (Florida)
Posts: 76

Posted:

Our Board is preparing to allow a member who has a sketchy past and pending litigation. The Board is prepared to allow this person on a probationary basis. However, There's no such provision in our ByLaws or Florida Statutes. My thought is that either the Board should wait until litigation is through the courts or deny.

Is is appropriate for a Board to ad lib? I'm new to all this and I'm trying not to be a pain to the Board, but in my line of work, if it's not documented, you can't do it.

Thanks to all of you for help. I enjoy this forum.

DouglasK1 (Florida)
Posts: 2,046

Posted:

Allow a member to do what?

Escaped former treasurer and director of a self managed association.

JimB37 (Florida)
Posts: 76

Posted:

They are applying to be a renter.

DouglasK1 (Florida)
Posts: 2,046

Posted:

To be clear then, they are not applying to be a member of the association, members are owners. They are applying to be a resident, apparently your governing docs give the association authority to vet renters. Do the docs provide any guidance regarding allow/disallow criteria, or is it up to the board to make case by case decisions? "Pending litigation" would suggest a civil case, is that correct? I'm not sure why the fact that somebody is being sued should affect a rental decision unless the reason for the suit was relevant (such as by another HOA where the person was a renter).

Escaped former treasurer and director of a self managed association.

AugustinD
Posts: 5,144

Posted:

What exactly do the Bylaws and Declaration (Covenants) say about approving renters? Or are the Bylaws and Declaration (Covenants) silent on the point?

Jim, whatever you quote, please be exact about the source. That is, is the quotation from the Bylaws, the Declaration (Covenants), or somewhere else?

JimB37 (Florida)
Posts: 76

Posted:

It's a minor criminal matter, which by itself, would not be disqualifying. However, as I mentioned, there are issues from their history, that when combined with the criminal matter, would be a concern and a no vote from me. My preference would be to vote no, let the case play out and then decide.

Some say that arrests should not be considered - only convictions. However, even Florida statutes take the number of arrests into consideration by bumping what would be misdemeanors up to felonies if there are previous arrests.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

The question is why is the HOA involved in the approval of renters? They are a third party to any rentals. The homeowner should know better and vet their own renter out. Which may be a credit/criminal check.

The HOA just should request the Homeowners put in their lease agreements that their renters obey the HOA's rules. The HOA can't enforce the rules on the renter but they can to the Homeowner. That homeowner then would have the power to remove the renter for not following the HOA's rules.

I am unclear about litigation? That makes no sense if they aren't a member. Denying them the ability to rent is in the right of the HOA if that is indeed the case for your HOA's rules. The criminal history may be something can enforce as well. I once rented an apartment where I had to have a form signed by that county's police department. Had to prove did NOT have a criminal record in that county. So that may be a local/county law that can be enforced.

Former HOA President

JimB37 (Florida)
Posts: 76

Posted:

Thanks to everyone who has responded. I will firm up my details and get back on if time permits.

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By MelissaP1 on 02/09/2019 4:39 PM
The question is why is the HOA involved in the approval of renters? They are a third party to any rentals. The homeowner should know better and vet their own renter out. Which may be a credit/criminal check.

The HOA just should request the Homeowners put in their lease agreements that their renters obey the HOA's rules. The HOA can't enforce the rules on the renter but they can to the Homeowner. That homeowner then would have the power to remove the renter for not following the HOA's rules.

I am unclear about litigation? That makes no sense if they aren't a member. Denying them the ability to rent is in the right of the HOA if that is indeed the case for your HOA's rules. The criminal history may be something can enforce as well. I once rented an apartment where I had to have a form signed by that county's police department. Had to prove did NOT have a criminal record in that county. So that may be a local/county law that can be enforced.

This has been discussed many times before, and in many associations rentals are reviewed and have to be approved (or disapproved) by the association. This might not be the way "you used to do it" or the way you think it should be done.

Escaped former treasurer and director of a self managed association.

JimB37 (Florida)
Posts: 76

Posted:

I'm going to narrow this question down to this point:
The Board is considering the application of a person on a probationary basis. Such a thing is not spelled out in our ByLaws or in 720 (FL). Would it not be better if they just said yes or no?

My thought is by using a "probationary" provision, which has no standard, just complicates things.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Are renters even members? HOA's are made up of ONLY owners. So what type of membership is this person even getting? Just renting a place doesn't make one a HOA member. If they were buying the place, then that would. They are just asking to be a resident. Their landlord the owner is the member. Whom would be responsible for them.

Former HOA President

JeffT2 (Iowa)
Posts: 880

Posted:

Do a Google search for FL condo criminal background check. There are quite a few articles on it. My understanding is that FL law allows it, but it can be found to violate the Fair Housing Act if it has an unjustified discriminatory effect, even if there is no intent to discriminate. Arrest without conviction or guilty plea is not a good enough reason to deny application. You can have big problems here, and need legal or professional help.

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By JimB37 on 02/10/2019 5:52 AM
I'm going to narrow this question down to this point:
The Board is considering the application of a person on a probationary basis. Such a thing is not spelled out in our ByLaws or in 720 (FL). Would it not be better if they just said yes or no?

My thought is by using a "probationary" provision, which has no standard, just complicates things.

I've never heard of it being done, but what is probationary expected to mean in this case? Is it just a label, or are there any other ramifications that would treat this renter any different than any other renter?

Escaped former treasurer and director of a self managed association.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Jim

I say either you accept or reject the renter. This probation is BS.

GenoS (Florida)
Posts: 4,276

Posted:

Any sort of "probationary" approval is bound to be trouble. The negative effects would be felt by the owner as well as the renter looking for a place to live. If I was the owner and my tenant was approved subject to some kind of "probation" and the association attempted to revoke that approval for a probation violation (thus depriving me of rental income), I'd scream bloody murder. Does the association have the power to get involved in a lease between an owner and a renter? That's asking for trouble with Fair Housing laws and landlord-tenant laws.

JimB37 (Florida)
Posts: 76

Posted:

Thanks to you all! I pretty much agree that the probationary idea is just an excuse to let someone in that would not normally be allowed. It's just asking for trouble. Unfortunately, the only thing I'm going to be able to do is to say no so I can have it on record and then let the landlord train run over me.

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