● A provision requiring the lapse of a specified duration of time before a new member can rent their unit. ● A provision limiting the frequency of rentals within a specific period of time. ○ Example : the documents allow one lease within a twelve- month period. ● The duration of a lease being shorter or longer than authorized in the documents. ● A provision requiring the member to be in good financial standing before being allowed to rent. ● A provision that the potential renter meets specific financial criteria. ● A provision requiring the member to pay a security deposit for their renter. ● A provision requiring the potential renter to pay a security deposit. ● Refusal of the potential renter to attend a required orientation session prior to moving in. ● A provision requiring the applicant to sign a written statement that they are aware of, and agree to, comply with the association’s rules and regulations. ● A provision requiring the applicant to sign an authorization to be screened and agree, in writing, to accept and not contest, the decision of the screening committee. typical association desires unless they believe they can make a quick profit by flipping it. Or have another renter in waiting. Some have argued that ROFR is useful because an association, if it’s willing to purchase or lease the unit, can legally deny an applicant for any reason, reasonable or not. If asked for a reason the response would be to invoke the ROFR. Most likely the owner of the unit will not protest the rejection, unless the transfer involves a friend or family member. After all, they’re getting their money. However, the applicant may not appreciate the denial and initiate legal action alleging some form of illegal discrimination or unreasonableness. They might even win. The law, as it stands now, empowers an association with ROFR in its documents to reject an applicant for any reason, other than unlawful discrimination against a protected class of persons, if it is willing to purchase or lease the unit.
○ The association must include provisions, under law, regarding the existence of a service animal, as defined by the ADA, or an assistance or emotional support animal, defined by the FHA. ● The applicant intends to have a type of pet that is prohibited in the documents. ○ The specific breed/type must be clarified in the documents of the association as well as the distinction of provisions relative to service, assistance, and emotional support animals. ● The applicant has a criminal record, appears on the FBI’s Terrorist Screening Database, is a registered sex offender, or has a documented history of unacceptable behavior. ○ The association’s documents must be very specific in describing its criteria for denial. For example, some forms of criminal behavior, depending on the specificity of the documents, may be acceptable, such as traffic offenses or misdemeanors, and others cause for denial, such as a felony, may be unacceptable. The documents must clearly define what constitutes unacceptable behavior. It may also be possible to deny an application for rent if a violation of the documents would result. Examples may include: Right of first refusal The right of first refusal (ROFR), as applied to community associations, is the right of an association (if it is included in the governing documents) to be offered the opportunity to purchase or lease a unit (for sale or lease) before that unit is offered for sale or lease to another party, at its fair market value. Typically, what occurs is that an owner obtains an offer and then presents the contract (for sale or lease), along with an application from the prospective buyer or renter to the association. The association then has a specified period (state law requires a maximum of 30 days to respond to the applicant), to invoke its ROFR and purchase or lease the unit. How useful is the ROFR in keeping people whom the association doesn’t like, for whatever reason, from owning, leasing, or residing in an association? To begin with, the association would have to purchase or lease the unit, not something that the
HOW TO CREATE LEGAL SCREENING PROCEDURES
To begin, it’s necessary to specify the characteristics of the type of owners and tenants the community wants to keep out. That is commonly accomplished by surveying the members. Once accomplished, the board needs to authorize an attorney to draft amendments to the current governing documents to Amend the documents Governing documents are subordinate to local, state, and federal laws. So, drafting documents typically requires the services of an attorney to ensure that they do not conflict with existing laws and are enforceable in a court of law. A successful legal challenge alleging violations of law from a rejected applicant for membership, lease, or residency, can prove extremely damaging to the association. And, yes, hiring a skillful attorney can be expensive, but nowhere near as pricey as paying damages and legal fees imposed by a judge angered by Create the screening procedures Prior to beginning screening of applicants, the board must: ● Determine if the association will perform background checks on prospective new owners and lessees. ○ Determine the standard type of background screening (criminal, background, financial). ○ Determine the standard geographic scope of the search (one or more states, national, multiple nations, international).
submit to the members for their review, prior to a vote. Yes, in order to screen, the authorization to do so must come from the documents. Simply passing a rule is neither appropriate nor legal.
an association unlawfully denying membership or residency to a sympathetic applicant. Once the attorney has drafted the proposed amendments, the following needs to be accomplished: ● The members must vote to approve the amendments. ● The board must adopt any necessary procedural rules related to the amendments. ● The amended documents are filed and recorded. ● The amended documents and related rules passed by the board are distributed and/or made available to the members. ○ When the association does intend to perform background checks, it will need to seek to contract for a legitimate background screening company. ● Adopt a screening application form. ● Set the screening fee. ● Condominium and cooperative associations are permitted only to charge a transfer fee that is mandated by statute. Homeowners’ associations currently have not statutorily
Page 63
Book Code: CAMFL1524
EliteLearning.com/CAM/Florida
Powered by FlippingBook