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Condominium association rules and following the Fair Housing Act

By ERIC FEICHTHALER - Real Estate Law | Oct 8, 2020

Dear Mr. Feichthaler:

I am the president of a local condominium board. We have the obligation to review potential tenants in our units, and we typically reject any applicant with a criminal record. I assume that, since we are looking out for the safety of our residents, this is OK?

— Robert A.

Dear Robert:

First, thanks for your service to your association. I know these positions can be thankless and challenging at times, and you want what is best for your community. Historically, there would be no issue with denying an applicant with a criminal record, so long as your Declaration of Condo-minium and rules gave the board the clear authority to do so. However, be aware that the Fair Housing Act may cause you an issue.

The Fair Housing Act, as you would expect, prohibits discrimination against any protected class, including denials based on race, religion and national origin, among others. If you had a policy that banned owners and tenants of Norwegian origin, it would be illegal. Although those who have been convicted of crimes are not a protected class, the courts have held that a lawsuit could be filed where a rule has the effect of impacting a protected class, even where the rule is neutral on its face. Statistically, a higher percentage of Hispanics and African-Americans are arrested than the general population, which means that rules banning those who have criminal records could have the incidental impact of being discriminatory. Such blanket rules against all those who have been convicted of anything illegal expose your community to potential liability.

For a rule to be considered non-discriminatory, it must show that the rule is necessary to achieve a legitimate, non-discriminatory interest. An acceptable rule would allow denial to an applicant who has been involved with violent crimes, crimes against children, and other activities that would create a reasonable threat against the residents of your community.

There are litigious people out there that go from association to association in an attempt to find rules that violate the Fair Housing Act, then file lawsuits in an attempt to extract money from those communities. There can be steep financial penalties under the Fair Housing Act.

Please keep the risks in mind when reviewing your new owners or tenants, and seek an attorney’s advice if you feel your association’s rules could expose your owners to a lawsuit.

Eric P. Feichthaler has lived in Cape Coral for over 30 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continues his service to the community through the Cape Coral Caring Center, Cape Coral Historical Museum, and Cape Coral Kiwanis. He has been married to his wife, Mary, for over 18 years, and they have four children together. He earned his board certification in Real Estate Law from the Florida Bar. He is AV Preeminent rated by Martindale-Hubbell for professional ethics and legal ability, and is a Supreme Court Certified Circuit Civil Mediator.

Mr. Feichthaler can be reached at eric@capecoralattorney.com, or (239) 542-4733.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.