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Can a Condo HOA Deny a Convicted Felon?

How much oversight does a condo board have over owners who rent out their units. Also: In a no-pets-allowed condo complex with a handful of emotional support animals, is it OK to limit the animals’ outside movements to maintain common areas?

STUART, Fla. – Question: If a prospective tenant of mine has questionable credit, an old felony conviction or a roommate that does, what right does the HOA have in refusing occupancy to my prospective tenant? – Name withheld

Answer. First and foremost, you should confirm that the Declaration of Covenants grants the Association the authority to approve or disapprove leases. Many times, Associations think they have such authority but if it is not clearly expressed in the Declaration they do not.

If the authority does exist, then the Board can typically deny a lease for good cause. Sometimes the good cause reasons are listed in the Declaration and sometimes they are listed in a Board resolution. The department of Housing and Urban Development issued Memorandum some years ago regarding blanket denials of convicted felons. It is HUD’s position that while convicted felons are not a protected class and thus it is not illegal to discriminate based on such status, the effect can have a disparate impact on persons who do belong to a protected class.

So, the Association should not have a blanket policy of always denying convicted felons but should consider each application on a case-by-case basis and make a reasonable determination as to the adverse effect on the community. For example, a 30-year-old felony conviction for stealing a car should be considered differently than a recent conviction for robbing a bank, murder or a sexual offense. Similar logic should be applied when using a credit score for the basis of the denial.

Question: A condo association that has a no pet policy does have a few owners/tenants with emotional support animals. To protect the common elements, as well as for other owners who may be allergic, the Board wants to have a rule that requires the emotional support animal owner to transport their animal in the building, either by the use of a wagon or carrying the animal. Is this legal? – Name withheld

Answer: Probably not. The instructions from HUD are pretty clear that special rules cannot be imposed on persons with service/emotional support animals without a real showing of potential harm. A handler of a service or emotional support animal is not even covered by the leash law if the leash will interfere with providing the service.

The Association has the right to demand the removal of an animal that is not under the control of the handler while in the public/common areas but also has the burden of proof of a real threat to health or safety. In a situation where there is actual or realistic threat to health and safety or the owner fails to meet their financial responsibility to repair damage, the Association still would need to show that they worked with the owner to address the problem in the least restrictive way and that the owner cannot be “reasonably accommodated.” So, requiring the animal to be carried or transported in a wagon while on the common area would not seem to meet the reasonableness test nor do I think it could be demonstrated that such a rule would appreciably safeguard a person with allergies.

Richard D. DeBoest II, Esq., is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, PLLC or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney if you have questions about any of the issues raised herein.

© 2019 Journal Media Group, Richard D. DeBoest