I often times get phone calls from board members who are upset about the fact that some new owner went through the screening process, filled out the application, paid the fee and showed up for an interview. But it turns out that there are more people living in the unit than expected and none of them went through the screening process! After all, doesn’t everybody who is going to live in the unit have to be screened and approved, except for children?
The screening, approval and denial process is often times complex. As I always say, some boards think they have an inherent right to screen, approve and reject potential buyers and renters, simply because they are the board of directors. They are wrong.
The ability to screen, approve and reject needs to be specifically granted to the Board of Directors in the governing documents. For the sake of this discussion, let’s assume the docs have language that allows the board to screen, approve and reject potential buyers of a unit. Now, let’s assume that the buyer passes the background check with flying colors and is welcomed into the community. A few days later, that buyer brings in her boyfriend, parents, nieces and nephews. Do they have to be screened and approved?
In my nearly 30 years of practice, it is extremely rare that I find provisions of a declaration that would require everyone to be screened. At best, the documents allow the “buyer” to be screened and approved. In addition, there is always language in a declaration that basically says: “the unit is to be used as a single family residence by the owner, his or her family members, invitees and social guests.” Reading all these provisions together, it is clear that once that buyer is approved, that buyer can bring in their family and guests into the condominium or HOA without any of them going through the screening and approval process. That’s right, a guy like Charles Manson may have just slipped through the cracks because your documents were not up to par.. And forget any argument that there really is not a “family” living in the unit when the occupants are unrelated. The definition of “family” is broadly defined and really includes almost any people that are simply living together..
So, the tip for the day is……..if you want to ensure that every occupant who will be living in the home or unit is screened and approved, be clear and unambiguous about it in your governing documents. Review your governing documents carefully and make sure they say what you think they say or want them to say. And to be safe, get the advice of your association’s counsel so you don’t get sued for trying to kick someone out that has every right to stay.