Condominium Associations

How to prevent bad actors from slipping into your community under radar

So you have pretty good up to date governing documents. You require all prospective owners and tenants to apply for your Association’s approval before they can occupy a home or condominium unit. You limit the number and duration of leases allowed per year; maybe no more than three (3) times for year for no less than thirty (30) days. You also limit the number of guest visits and the duration of visits of an owner’s or tenant’s in the absence of the owner or tenant; maybe no more than thirty (30) days per year for immediately family members with total number of such visits limited to four (4) times per year and for extended family or other guests maybe no more than fourteen (14) days per year with a total number of such visits limited to two (2) times per year.

With such superior documents you limit bad actor guests to be on property for only a short period and any bad actor prospective purchasers or tenants will be denied approval once their background check is run revealing their checkered past that will provide grounds for occupancy disapproval.

However, there is one loophole in these better documents that we have seen lately being abused that you can now close by amending governing documents. That loophole is the spouse, significant other, family member or friend who moves in with the owner or tenant after the owner or tenant has been background approved. These people with criminal or financial background issues know they probably will not be approved if they are background checked so the prospective owner or tenant will not list them on the approval application. The convicted criminal will just wait a few weeks after the new owner or tenant moved in and then move in quietly at night or over the weekend.

Bingo, you now have a registered sex offender or convicted felon living in your community long-term. Once they are in, it can then be very difficult to get them removed from the community as long as there is no evidence they are breaking the community’s rules or regulations.

We have found the best way to handle this situation is to amend your Declaration of Condominium or Declaration of Covenants to say that: “once a guest, whether related or unrelated to the owner or primary occupant, who may occupy the unit together with the unit owner or tenant for a period of more than thirty (30) days in any twelve (12) month period, such guest must apply for and obtain Association approval in the same manner as a prospective owner or tenant is required to obtain Association approval pursuant to the transfer approval provisions. If the guest does not obtain Association approval within the requisite time periods, the guest must then vacate the unit”

If they are then disapproved after their background check reveals grounds to deny, you should then be able to get a court order to require them to leave your community if they fail to do so.

Believe it or not there are quite a few convicted sex offenders and predators living throughout Southwest Florida. You can check the Florida Department of Law Enforcement website which show by maps where some of these people are currently living:

Rob Samouce is a principal attorney in the Naples law firm of Samouce & Gal, P.A. He is a Florida Bar Board Certified Specialist in Condominium and Planned Development and concentrates his practice representing condominium, cooperative and homeowners associations in all their legal needs including the procedural governance of their associations, covenant enforcement, assessment collections, contract negotiations and contract litigation, real estate transactions, general business law, construction defect litigation and other general civil litigation matters. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time.