This is the third installment in our How To Series entitled “How to Screen Renters or Owners–Some Thoughts and Possible Consequences of Screening Applicants.”
We’ve already discussed whether screening is legal, but is screening really a good idea for an association to pursue in the first place? I started this discussion after reading a recent article in the Miami Herald about a widow who filed suit against her association after her husband was murdered by a tenant. So, with legal liabilities in play, how do you determine if owner/renter screening is even a good idea for your condominium or HOA?
One thing I can say with certainty, both from speaking to condo and HOA owners from around the country at conventions, as well as from interactions with owners at my own property, the idea of screening is really, really popular. Some of it is clearly due to societal changes over the past 20 or so years, and I honestly believe a lot of it dates back to 9/11. For good reason, the events of 9/11 scared people throughout the United States. The attack on the World Trade Center, which has been followed by scores of very publicized workplace shootings and various terrorist threats (such as the recent Times Square bomb scare), not to mention the publicity that the various “Megan’s Laws” have brought to the existence of sex offenders, have made people feel uneasy about their day-to-day personal security. And it’s basic human nature that when your environment is out of control, you look for some way to control your environment. For most of us, our home is the last possible bastion of personal security. We can try to barricade ourselves in and shut out the ever more dangerous world, but the basic nature of Shared Ownership Communities (like condos and HOAs) has encouraged people to try to spread their safety net outside of their front doors.
But is it possible? Whenever someone tells me that they want their Condo or HOA to start screening tenants or owners, I always ask them to back up a bit and to determine their end game first. I’m a big believer in “end games.” If you don’t know where you are trying to go, how do you plan how to get there?
So let’s work through a typical thought process. Mr. Condo Owner tells me that he wants to screen so that he can protect his family from potentially dangerous people—murders, sex offenders and the like. The conversation usually goes something like this:
Mr. Condo Owner: “I want my association to screen potential tenants or owners–we need to figure whether or not they’re sex offenders.”
My answer: “Understandable, but you can do that without a screening process. Sex offenders are easily identifiable online at a hundred different Megan’s Law websites.”
“Well what if he’s a criminal? We can’t have dangerous criminals running around our community.”
“What type of criminal? All criminals? Only persons convicted of particular types of crimes? And who gets to decide which crimes are bad, and which are excusable?”
“Felons at least, I think we at least need to identify felons.”
“Fair enough. What if you find out that a potential owner took a car for a joy ride 40 years ago when he was 18. He spent 3 years in jail for the felony and is now a well-respected businessperson in the community. Do you ban him?”
“Of course that’s not the kind of person I’m worried about. I’m thinking more about dangerous criminals. Like drug crimes.”
“Sure. So what about this guy—he was arrested for smoking a joint at a U2 concert. You going to ban him from buying a unit?”
“Well not that guy either. Heck, I could BE that guy!”
“Fair enough, and I wouldn’t want to ban him either. So what exactly are you going to look out for?”
“Well how about people who were involved in violent crimes.”
“What about a man who was caught in a bar fight.”
“I’m starting to see the problem here…”
The problem, really, is that screening doesn’t do what people think it does. Screening applicants is not automatically going to protect you from dangerous people. What it will do is impose on an association board, or worse, on a manager, the responsibility of making tough, hairline decisions based on private, confidential information that almost no board member or manager has the training or ability to differentiate appropriately.
Furthermore, as is illustrated by the story at the opening of this article, the simple act of screening applicants may open your association to lawsuits by owners for a host of reasons—you rejected their applicant unfairly, you failed to reject an applicant whom you should have rejected, an applicant that you screened failed to pay his rent, and applicant you screened committed a crime, etc. Now, I’m not saying that these lawsuits are legitimate or likely to succeed—I’m simply saying that the existence of a screening process will invite lawsuits that your association wouldn’t otherwise have to stomach.
So, given all of the difficulties I’ve just outlined, why would any association choose to screen tenants or owners? Well, some association documents may require screening—or the demand from owners may simply be too great to ignore.