Is a Homeowner or Condominium Association’s Rule to arbitrarily decline a tenant valid?

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February 1, 2019

Homeowner or Condominium Association’s Rule to arbitrarily decline a tenant valid?
Florida law supports the rights of a homeowner or condominium’s association to review and approve or decline prospective tenants.  That said, there seems to be a common misunderstanding by the directors in many associations as to their rights to approve and screen individuals seeking to rent homes within their communities.  Contrary to what some people may think, associations do not have unfettered rights to interview, screen and either reject or accept prospective tenants who are interested in renting units within their community.  In the first place, unreasonable restraints on the alienation of property are disfavored by Florida courts.  Historically, courts have concluded that a restriction on the ability of a person to lease his property is valid only to the extent that such a restriction is “reasonable.”  To determine what approval rights the association may or may not have regarding a potential tenant, the association should start by reviewing its own governing documents. Without a provision authorizing the association to reject a potential tenant, the board should, absent exigent circumstances, refrain from disapproving any tenant or purchaser.

 Moreover, even if the document does allow the association to approve or disapprove of the potential tenant, the board is not necessarily free to do so.  The requirement to obtain an association’s approval prior to leasing a home is deemed to be an alienation of such real property, and, therefore, that restraint may only be imposed to the extent reasonable. An arbitrary denial of a tenant is likely to be held unenforceable.  Grounds that courts may examine when determining whether it is reasonable to deny a tenant seeking to reside in a community may include: (1) the applicant has been convicted by a court of a felony involving violence to persons or property, or a felony demonstrating dishonesty or moral turpitude, and has not had their civil rights restored; (2) the applicant has a history of disruptive behavior or disregard for the rights and property of others as evidenced by his behavior in other living environments or social settings; (3) the application for the lease, on its face, or the conduct of the potential lessee indicates an intent to act in a manner contradictory with the association’s governing documents; (4) the applicant has failed to provide the information in a timely manner or has materially misrepresented any fact or information provided in the application or screening process.  Most significantly, in no event may an association deny the application of a proposed lessee on the basis of gender, race, religion, national origin or physical or mental handicap.

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