● The fees for screening and transfers that are charged to the applicant(s) must be reasonable and conform to statutory requirements of the type of community association. ● Approval and/or denial of residency based on financial status must be clearly described in the application and screening process and specify the basis, such as income, net worth, credit worthiness, as described in the association’s governing documents. ● Approval and/or denial based on an applicant’s refusal to be screened or pay the screening fee must be based on such authorization and fee amount described in the association documents. ● Related to a unit/parcel owner leasing their residence, and in addition to any advance payments that the owner (lessor) may require, the association may require a security deposit paid by the owner to the association. For condominiums and cooperative associations: ○ The amount of a security deposit cannot exceed the state statutory limit (one month’s rent). ○ The security deposit must be held in conformance with statutory requirements for the type of community association and in conformance with certain parts Background checks ● Requiring background checks of residents remains a universally popular policy among condominiums and homeowners’ associations. Increasingly, however, these restrictions become less relevant and more difficult to support. ○ Community associations who want to perform background checks and restrict certain types of felons from living in the community should speak with their association attorney to tailor those restrictions. Examples might include, violent felons, or persons convicted of crimes against minors. Still, enforcing such a ban is far from certain. ● The association will have to prove that the restriction is necessary to achieve a legitimate interest, and that interest could not be served by another, less discriminatory practice. Approval or denial time frame Typically, if not mandated by statute, most governing documents include specified time frames for such things as approval or denial of an architectural application. This holds true for those community associations that screen and/or require applications or interviews of prospective purchasers or lessees. Depending on how the association’s procedures are constructed, it is common to have a thirty-day approval/denial time frame. In 2016, Florida passed a bill that imposes new duties on landlords when dealing with a rental application by a U.S. military servicemember. If a landlord requires a prospective tenant to fill out an application, the landlord must process such application Right to deny Denials that are based on information in an application that may be reasonably interpreted as legitimate grounds for denial must be based on the governing documents or a violation of the law. Examples of reasons to deny an application may include: ● One or more persons applying for residency do not meet the age limit in a senior living community. ● The number of people listed in the application exceeds the maximum occupancy limits, provided that the governing documents contain occupancy restriction details. ● The applicant for residency is not a single family as defined by statute. Definition of Single-Family Unit or Non-Commercial: ● F.S. 419.001(2): “Homes of six or fewer residents which otherwise meet the definition of a community residential home shall be deemed a single-family unit and a non-
of statutes relative to F.S. 83, Landlord Tenant Act specifications. ○ A security deposit held by the community association must be returned or retained in accordance with the appropriate community association statute and applicable F.S. 83. In a cooperative, it must be returned within 15 days of vacating the premises or the lessee must be notified as to what reason the deposit will be held. ○ The specific information regarding a security deposit collected by the community association must be contained in the screening procedure criteria. ● Approval and/or denial of a prospective owner/applicant that requires a payment of a capital contribution to the association must be based on the authorization for and amount of such requirement described in the association’s documents and the screening criteria. ● Approval and/or denial of a prospective owner/applicant based on a background check must have the authority of the governing documents and the written screening criteria. A background check should be based on criteria that affects the community association, not a broad stroke approach. ● The U.S. Department of Housing and Urban Development (HUD) has issued legal guidance on this issue, particularly as it applies to criminal history restrictions. ● The U.S. Supreme Court held that a valid claim could be brought under the Fair Housing Act (FHA) if an otherwise neutral policy has a negative effect on a particular protected class of people (disparate impact). Does this mean that the boards should be concerned that even if they perform background checks they are legally unable to take any action if they find something in the background is cause for concern? It’s clear that communities that restrict rentals or sales based on criminal history should review their policies with their attorney, because certain restrictions may now trigger a fair housing inquiry. within seven days of submission. Within the same seven-day period, the landlord must notify the service member in writing if the application was approved or denied. If the application was denied, the landlord must include the reason for the denial in the notification. The statute further provides that the landlord must approve the rental application of the servicemember if the landlord fails to provide a timely denial, and all other application requirements are met. The board of directors, the CAM, and the committee (if one exists) who makes the final decision on rental applications for residency, must be mindful of such provisions in the law. commercial, residential use for the purpose of local laws and ordinances.” ● F.S. 760.24: “It is unlawful to deny any person access to, … relating to the business of selling or renting dwellings, or to discriminate against him or her in the terms or conditions of such access, membership, or participation, on account of race, color, national origin, sex, disability, familial status, or religion.” It may be possible to deny residency in a community association based on certain provisions, such as: ● The applicant intends to use the residence for business or commercial purposes. ● The applicant intends to have pet(s) in their residence in an association that does not permit pets. ● The applicant intends to have pet(s) in their residence that exceed the size or number permitted.
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